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HomeMy WebLinkAboutORD 01 (2024)ORDINANCE NO. 01 (2024) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR AMENDING CHAPTER 8.26 OF THE DIAMOND BAR CITY CODE IN ITS ENTIRETY TO PROHIBIT AND REGULATE MARIJUANA/CANNABIS BUSINESSES AND CULTIVATION IN COMPLIANCE WITH STATE LAW AS LAST AMENDED BY SB 1186. WHEREAS, in 1996 California voters approved Proposition 215, commonly referred to as the Compassionate Use Act ("CUA"), which enabled seriously ill patients to legally possess, use and cultivate marijuana for medicinal purposes under state law; and WHEREAS, I SB 420, the Medical Marijuana Program Act, was enacted by the state legislature to clarify the scope of the CUA and to allow local jurisdictions to adopt and enforce rules and regulations consistent with the CUA; and WHEREAS, in 2015, AB 266, AB 243, and SB 643, the Medical Marijuana Regulation and Safety Act ("MMRSA"), was adopted by the state legislature to establish regulations for commercial medical marijuana activity in the state; and WHEREAS, in 2016, SB 837, the Medical Cannabis Regulation and Safety Act was adopted by the state legislature and changed "marijuana" references in the MMRSA to "cannabis" among other things; and WHEREAS, in 2016, Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act ("AUMA") decriminalized, under state law, specified nonmedicinal cultivation and use of marijuana; and WHEREAS, under the AUMA the City is permitted to prohibit and regulate specified aspects of nonmedicinal cultivation and use of marijuana; and WHEREAS, Chapter 8.26 of the Diamond Bar Municipal Code prohibits, among other things, the establishment of marijuana dispensaries anywhere in the City; and WHEREAS, SB 1186 (Chapter 395, Statutes of 2022), known as the Medicinal Cannabis Patients' Right of Access Act ("Act"), prohibits local jurisdictions, beginning January 1, 2024, from adopting or enforcing any regulation that prohibits, or has the effect of prohibiting, the retail sale by delivery within the jurisdiction of medicinal marijuana to medicinal marijuana patients or their primary caregivers by licensed medicinal marijuana businesses in a timely and readily accessible manner, and in types and quantities that are sufficient to meet demand from medicinal marijuana patients within the local jurisdiction; and WHEREAS, the Act permits local jurisdictions to adopt and enforce reasonable regulations on retail sale by delivery of medicinal marijuana; and Ordinance No. 01 (2024) WHEREAS, the Act does not limit or otherwise affect the ability of a local jurisdiction to adopt and enforce any regulations on commercial marijuana operations other than retail sale by delivery of medicinal marijuana in the local jurisdiction; and WHEREAS, the City Council finds that there are presently more than 12 licensed medicinal marijuana retailers located within a 17 mile radius of the City of Diamond Bar from which retail sale by delivery of medicinal marijuana in the City is or may be available; therefore, prohibiting the establishment of physical premises within the City from which retail sale by delivery of medicinal marijuana is conducted will not have the effect of prohibiting the retail sale by delivery of medicinal marijuana to medicinal marijuana patients or their primary caregivers in a timely and readily accessible manner in types and quantities that are sufficient to meet demand from medicinal marijuana patients who reside in the City. NOW THEREFORE, the City Council of the City of Diamond Bar hereby ordains as follows: Section 1. The City Council finds that the above recitals are true and correct. Section 2. Chapter 8.26 of the Diamond Bar City Code is hereby amended in its entirety to read as follows: CHAPTER 8.26. —MARIJUANA BUSINESSES Sec. 8.26.010. -Purpose, Findings and Definitions. (a) Purpose and Findings. The City Council finds that in order to serve the public health, safety, and welfare of the residents and businesses within the City of Diamond Bar, the declared purpose of this chapter is to prohibit marijuana cultivation and marijuana dispensaries including delivery services from locating and operating in the City as stated in this chapter in compliance with state law. (b) Definitions. As used in this chapter, the following terms, words and phrases have the meanings as defined in this section, unless another meaning is clearly apparent from the context: City means the City of Diamond Bar. Identification card is a document issued by the State Department of Public Health and/or the County of Los Angeles Department of Public Health which identifies a person authorized to engage in the medicinal use of marijuana and the person's designated primary caregiver, if any. Marij uana or cannabis means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its Ordinance No. 01 (2024) seeds, or resin. Marijuana also means the separated resin, whether crude or purified, obtained from marijuana. Marijuana also means cannabis as defined by Section 11018 of the California Health and Safety Code. Marijuana includes, but is not limited to, medicinal cannabis as defined in California Business and Professions Code Section 26001(al). Marijuana does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this definition, marijuana does not mean "industrial hemp" as defined by Section 81000 of the Food and Agricultural Code or Section 11018.5 of the Health and Safety Code. Marijuana cultivation means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. Marijuana cultivation site means any indoor or outdoor facility or location where marijuana is planted, grown, harvested, dried, cured, graded, or trimmed, or that does all or any combination of those activities. Marijuana delivery means the transfer of marijuana or marijuana products from a dispensary to any person or entity at a location in the City. Marijuana delivery also includes the use by a dispensary of any technology platform owned and controlled by the dispensary, or independently licensed, that enables individuals to arrange for or facilitate the transfer by a dispensary of marijuana or marijuana products. Marijuana delivery includes, but is not limited to, delivery as defined in California Business and Professions Code Section 26001(r). Marijuana dispensaryor dispensary means any association, business, facility, use, establishment, location, marijuana delivery, cooperative, collective, or provider, whether fixed or mobile, that possesses, processes, manufactures, distributes, makes available, or otherwise facilitates the distribution of marijuana or marijuana products to any person, including, but not limited to, a qualified patient, a person with an identification card, or a primary caregiver. The term marijuana dispensary includes, but is not limited to, a business, facility, use or location that engages in commercial cannabis activity as defined in California Business and Professions Code Section 26001(m). The term marijuana dispensary shall not include the following facilities, locations or uses to the extent marijuana is dispensed by primary caregivers to qualified patients for medicinal use, as long as such use complies strictly with applicable law including, but not limited to, California Health and Safety Code Section 11362.5: a clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code; a health care facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code; a residential care facility for persons with chronic life -threatening illnesses licensed pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code; a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the California Health and Safety Code; or a residential hospice or home health 3 Ordinance No. 01 (2024) agency licensed pursuant to Chapter 8 of Division 2 of the California Health and Safety Code. Marijuana product means a product containing marijuana, including, but not limited to, concentrates and extractions and includes, but is not limited to, any medicinal cannabis product as defined in California Business and Professions Code Section 26001(al) or cannabis product as defined in California Business and Professions Code Section 26001(k), and/or any edible cannabis product as defined in California Business and Professions Code Section 26001(x). Medicinal marijuana means the same as defined in Section 26321(b)(1) of the California Business and Professions Code and is marijuana or a marijuana product intended to be sold or donated for use pursuant to the Compassionate Use Act of 1996 (Proposition 215), found in Section 11362.5 of the Health and Safety Code, by a medicinal cannabis patient in California who possesses a physician's recommendation, or in compliance with any compassionate use, equity, or other similar program administered by the State Department of Public Health or the County of Los Angeles Department of Public Health. Medicinal marijuana business means the same as defined in Section 26321(b)(2) of the California Business and Professions Code and is a retailer authorized to engage in the retail sale by delivery of medicinal marijuana to medicinal marijuana patients pursuant to an M-license. Medicinal marijuana patient means the same as defined in Section 26321(b)(3) of the California Business and Professions Code and is a qualified patient who possesses a physician's recommendation that complies with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2 of the California Business and Professions Code, or a qualified patient or primary caregiver for a qualified patient issued a valid identification card. Primary caregiver means the same as defined in California Health and Safety Code Section 11362.7 and is the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person. Qualified patient means the same as defined in California Health and Safety Code Section 11632.7 and is a person who is entitled to the protections of California Health and Safety Code Section 11362.5, but who does not have an identification card issued by the State Department of Public Health or County of Los Angeles Department of Public Health. Sec. 8.26.020. -Marijuana Dispensaries and Delivery Prohibited. (a) Marijuana Dispensaries and Delivery Prohibited. Except as exempted in subsection (c) below, marijuana dispensaries and marijuana delivery are prohibited in all zoning districts and specific plan areas in the City, even if located Ordinance No. 01 (2024) within an otherwise permitted use. It shall be unlawful for any person or entity to own, manage, conduct, or operate any marijuana dispensary or marijuana delivery service or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any marijuana dispensary or marijuana delivery service in the City. (b) Establishment or Maintenance of Marijuana Dispensaries Declared a Public Nuisance. Except as exempted in subsection (c) below, the establishment, maintenance, or operation of a marijuana dispensary or marijuana delivery service as defined in this chapter within the City limits is declared to be a public nuisance and enforcement action may be taken and penalties assessed pursuant to Title 1, Chapter 1.04 of the Diamond Bar City Code, and/or any other law or ordinance that allows for the abatement of public nuisances. (c) Exemptions. (1) Personal Cultivation. Pursuant and subject to Proposition 64 adopted by the State voters in November 2016, this section shall not prohibit: (i) the possession, planting, cultivation, harvesting, drying, or processing of up to six marijuana plants by persons 21 years of age or older inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure; or (ii) the possession of, or giving away of, the marijuana produced by such plants to persons 21 years of age or older. (2) Medicinal Marijuana Delivery. (A) Pursuant and subject to SB 1186 (Chapter 395, Statutes of 2022), known as the Medicinal Cannabis Patients' Right of Access Act, subject to the provisions of this subsection (c)(2), this section shall not prohibit the retail sale by delivery within the City of medicinal marijuana to persons with identification cards, qualified patients, or their primary caregivers by a medicinal marijuana business from a fixed location outside of the City. (B) Medicinal marijuana businesses engaging in the retail sale by delivery of medicinal marijuana within the City shall be subject to the following requirements: Each medicinal marijuana business engaging in the retail sale by delivery of medicinal marijuana in the City shall obtain and maintain a City business license pursuant to Title 5 (Business Licensing) of the Diamond Bar City Code. Each medicinal marijuana business shall maintain an active M-license issued by the State of California and all applicable permits and/or licenses required by the local jurisdiction in 5 Ordinance No. 01 (2024) which the business is located. The business shall submit a copy of all its State and local licenses and permits required for its operation to the Director of Community Development or his/her designee prior to issuance or renewal of a business license. The business shall notify the Director of Community Development or his/her designee if any applicable State or local license or permit required for its operation expires or is denied, suspended, modified, or revoked. iii. Each medicinal marijuana business and employee of a medicinal marijuana business engaged in the retail sale by delivery of medicinal marijuana in the City shall at all times comply with all applicable regulations promulgated by the California Department of Cannabis Control, including, but not limited to, the regulations pertaining to the delivery of marijuana set forth in California Code of Regulations, Title 4, Sections 15415 through 15421. iv. In accordance with subsection (a) above, the retail sale by delivery of adult -use marijuana is prohibited throughout the City. Only the retail sale by delivery of medicinal marijuana or medicinal marijuana products as required by state law is permitted in the City. A medicinal marijuana business or employee of a medicinal marijuana business shall not sell or offer for sale any marijuana accessories or branded merchandise of any kind concurrently or in conjunction with the retail sale of medicinal marijuana or medicinal marijuana products in the City. v. All deliveries of medicinal marijuana shall be performed by a delivery employee who is directly employed by the medicinal marijuana business. Each medicinal marijuana business shall maintain an accurate list of its delivery employees and shall provide the list to the City upon request. Each delivery employee engaging in the retail sale by delivery of medicinal marijuana in the City shall carry during deliveries and immediately provide upon request by the City or any law enforcement officer the following: a copy of the current business license issued to the medicinal marijuana business; a copy of the current license or licenses issued to the medicinal marijuana business by the State Department of Cannabis Control which authorize it to engage in the retail sale of medicinal marijuana; a copy of the QR Code certificate issued by the State Department of Cannabis Control; the employee's government -issued identification; an identification badge provided by the employer; delivery inventory ledgers from the time the employee left the employer's premises; all L Ordinance No. 01 (2024) delivery receipts for marijuana goods carried by the delivery employee, in the delivery vehicle, or any deliveries that have already been made to customers; and a log of all stops from the time the employee left the employer's premises. A delivery employee shall not carry marijuana goods valued in excess of $5,000 at any time while engaged in the retail sale by delivery of medicinal marijuana in the City. vi. All deliveries of medicinal marijuana must be made to a physical address that is not located on publicly owned land, on land or in a building leased by a public agency, a school providing instruction in kindergarten or any grades one through twelve, a day care center, or a youth center. A licensed retailer shall only sell medicinal marijuana goods to individuals who are at least 18 years of age and possesses a valid physician's recommendation after confirming the customer's age, identity, and physician's recommendation. vii. Each medicinal marijuana business shall maintain an accurate list of all vehicles used by its employees to deliver medicinal marijuana in the City, including each vehicles' make, model, year, color, license plate number, vehicle identification number (VIN), and Department of Motor Vehicles registration information, along with proof of current automobile liability insurance for each such vehicle as required by state law, and shall provide such list and proof of automobile insurance to the City upon request, in the event of any changes, and prior to issuance or renewal of a business license. Retail sale by delivery of medicinal marijuana in the City may only be conducted using a properly insured vehicle that is identified on the most current list provided to the City and that is outfitted with a dedicated global positioning system (GPS) device for identifying the geographic location of the delivery vehicle and recording a history of all locations traveled to by the delivery employee while engaged in delivery, as provided by state law. In accordance with state law, a delivery vehicle shall not have any marking or other indications on the exterior of the vehicle that may indicate that the delivery employee is carrying marijuana goods for delivery. (C) This subsection (c)(2) only authorizes the retail sale by delivery of medicinal marijuana by a licensed medicinal cannabis business from a fixed premises located outside of the City. Nothing in this section shall be construed to permit the establishment of a marijuana dispensary or other physical premises from which retail sale by delivery of medicinal marijuana within the City is conducted. 7 Ordinance No. 01 (2024) (D) Nothing in this subsection (c)(2) is intended to or shall be interpreted to prohibit medicinal marijuana patients or their caregivers from purchasing by delivery sufficient medicinal cannabis to meet their demands in a timely and readily accessible manner. Sec. 8.26.030. - Cultivation of Marijuana -Prohibited (a) Marijuana Cultivation Prohibited. Except as exempted in subsection (c) below, marijuana cultivation and/or the establishment, maintenance or operation of any marijuana cultivation site is prohibited in all zoning districts and specific plan areas in the City. (b) Establishment or Maintenance of Marijuana Cultivation Site Declared a Public Nuisance. Except as exempted in subsection (c) below, the establishment, maintenance, or operation of a marijuana cultivation site within the City limits is declared to be a public nuisance and enforcement action may be taken and penalties assessed pursuant to Title 1, Chapter 1.04 of the Diamond Bar City Code, and/or any other law or ordinance that allows for the abatement of public nuisances. (c) Personal Cultivation Exemption. Pursuant and subject to Proposition 64 adopted by the State voters in November 2016, this section shall not prohibit the possession, planting, cultivation, harvesting, drying, or processing of up to six marijuana plants by persons 21 years of age or older inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure. Sec. 8.26.040. -Additional prohibitions. No person shall possess, ingest or smoke marijuana in any building, or any property owned, leased or occupied by the city. Section 3. The adoption of this Ordinance is not a project within the meaning of the California Environmental Quality Act ("CEQA") in that it will not cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, in that there are no marijuana dispensaries currently existing or permitted under the City's current municipal code and it maintains the existing environment in the City. This Ordinance is not a project under CEQA pursuant to Public Resources Code Section 21065 which provides that CEQA only applies to an activity which has the potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. Further, the Ordinance is exempt from CEQA under the following provisions of Title 14 of the California Code of Regulations: Sections 15060(c)(2), 15060(c)(3) and 15061(b)(3), as the Ordinance is covered by the general rule that CEQA only applies to projects which have the potential for causing a significant effect on the environment and it can be seen with certainty that there is no possibility that the Ordinance will have a significant effect on the environment and Section 15304, as the Ordinance is a minor alteration in land use limitations. Ordinance No. 01 (2024) Section 4. If any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional. Section 5. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause a certified copy of this Ordinance to be posted within fifteen (15) days after this Ordinance is passed and adopted, in the Office of the City Clerk and two additional public places, together with the vote for and against the same. PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Diamond Bar on this 20th day of February, 2024. CITY OF DI OND BAR Mayor ATTEST: I, Kristina Santana, City Clerk of the City of Diamond Bar, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the 6th day of February, 2024, and was duly passed and adopted at a regular meeting of the City Council held on the 20th day of February, 2024, by the following vote: AYES: COUNCILMEMBERS: Chou, Low, Tye, MPT/Teng, M/Liu NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ABSTAIN: COUNCILMEMBERS: None 0 Kristina Santana, City Clerk E