Ordinance 3146CITY OFALAMEDA ORDINANCE NO. 3146
New Series
AMENDING ALAMEDA MUNICIPAL CODE SECTION 30 -5.15
REGARDING MEDICAL MARIJUANA DISPENSARIES TO DEFINE
AND PROHIBIT THE CULTIVATION OF MARIJUANA IN THE CITY OF
ALAM EDA.
BE IT ORDAINED by the City Council of the City of Alameda:
SECTION 1. Section 30 -5.15 is hereby amended in the Alameda Municipal Code
to read as follows:
Section 30 -5.15 - Medical Marijuana Dispensaries and Cultivation.
Section 30 -5.15 - Medical Marijuana Dispensaries and Cultivation.
MIKE=
In enacting this section, the City Council finds as follows:
1. In 1996, the voters of the State of California approved Proposition 215, also
known as the Compassionate Use Act of 1996 (the Act), codified at California
Health & Safety Code (H &S) section 11362.5 et seq.
2. The Act creates a limited exception from criminal liability for seriously ill persons
who are in need of medical marijuana for specified medical purposes and who
obtain and use medical marijuana under limited, specified circumstances.
3. On January 1, 2004, S.B. 420 went into effect. S.B. 420, known as the "Medical
Marijuana Program" (MMP) (codified at Cal. H &S Code sections 11362.7 through
11362.83) was enacted by the State Legislature to clarify the scope of the Act
and to allow cities and other governing bodies to adopt and enforce rules and
regulations consistent with S.B. 420.
4. The Act expressly anticipates the enactment of additional local legislation. It
provides: "Nothing in this section shall be construed to supersede legislation
prohibiting persons from engaging in conduct that endangers others, nor to
condone the diversion of marijuana for non - medical purposes." Cal. H &S Code
section 11362.5.
5. The City Council takes legislative notice of the fact that several California cities
and counties which have permitted the establishment of medical marijuana
dispensaries have experienced serious adverse impacts associated with and
resulting from such dispensaries. According to these communities, and
according to news stories widely reported, medical marijuana dispensaries have
resulted in and /or caused an increase in crime, including burglaries, robberies,
violence, illegal sales of marijuana to, and use of marijuana by, minors and other
persons without medical need in the areas immediately surrounding such
medical marijuana dispensaries. The City of Alameda reasonably could
anticipate experiencing similar adverse impacts and effects.
6. The City Council further takes legislative notice that as of July 2009, at least
twenty-nine (29) cities and two (2) counties in California have adopted moratoria
or interim ordinances prohibiting medical marijuana dispensaries. The City
Council further takes legislative notice that as of July 2009, at least one hundred
eleven (111) cities and seven (7) counties in California have adopted permanent
prohibitions against medical marijuana dispensaries.
7. The City Council further takes legislative notice that the use, possession,
distribution and sale of marijuana remain illegal under the CSA; that the federal
courts have recognized that despite California's Act and MMP, marijuana is
deemed to have no accepted medical use (Gonzales v. Raich, (2005) 545 U.S.
1; United States v. Oakland Cannabis Buyers' Cooperative, (2001) 532 U.S.
483); that medical necessity has been ruled not to be a defense to prosecution
under the CSA (United States v. Oakland Cannabis Buyers' Cooperative, (2001)
532 U.S. 483); and that the federal government properly may enforce the CSA
despite the Act and MMP. (Gonzales v. Raich, (2005) 545 U.S. 1).
8. While the City Council in no manner intends or undertakes by the adoption of this
section to enforce federal law, the City Council is concerned about interfering
with federal law enforcement efforts.
9. The City Council further takes legislative notice that concerns about nonmedical
marijuana use arising in connection with the Act and the MMP also have been
recognized by state and federal courts. See, e.g., Bearman v. California Medical
Bd., (2009) 176 Cal.AppAth 1588; People ex rel. Lungren v. Peron, (1997) 59
Cal.AppAth 1383, 1386-1387; Gonzales v. Raich, (2005) 545 U.S. 1, 32 n. 43.
10. Allowing medical marijuana dispensaries or the commercial cultivation of
marijuana, and issuing permits, business licenses or other applicable licenses or
entitlements providing for the establishment and/or operation of medical
marijuana dispensaries poses a threat to the public health, safety and welfare.
11. An ordinance prohibiting medical marijuana dispensaries and commercial
cultivation of marijuana, and prohibiting the issuance of any permits, licenses and
entitlements for medical marijuana dispensaries and commercial cultivation of
marijuana, is necessary and appropriate to maintain and protect the public
health, safety and welfare of the citizens of Alameda.
12. The City Council further takes legislative notice that the California Attorney
General has adopted guidelines for the interpretation and implementation of the
State's medical marijuana laws, entitled "GUIDELINES FOR THE SECURITY
AND NON-DIVERSION OF MARIJUANA GROWN FOR MEDICAL USE (August
2008)." (hftp://ag.ca.gov/cms — aftachments/press/pdfs/nl 601 —medicalmariju
anaguidelines.pdf.) The Attorney General has stated in the guidelines that
"[a]Ithough medical marijuana "dispensaries" have been operating in California
for years, dispensaries, as such, are not recognized under the law."
13. The City Council further takes legislative notice that in City of Claremont v. Kruse
(2009) 177 Cal.AppAth 1153, the Court held that neither the Act nor the MMP
preempts cities from adopting land use regulations for medical marijuana
dispensaries.
14. The City Council further takes legislative notice that the Act anticipates local
regulations at Cal. H &S Code section 11362.5(b)(2): "Nothing in this section shall
be construed to supersede legislation prohibiting persons from engaging in
conduct that endangers others, nor to condone the diversion of marijuana for
nonmedical purposes."
15. The City Council further takes legislative notice that in City of Riverside v. Inland
Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.41h 729, the
California Supreme Court held that "[n]othing in the CUA or the MMP expressly
or impliedly limits the inherent authority of a local jurisdiction, by its own
ordinances, to regulate the use of its land...." Additionally, in Maral v. City of Live
Oak (2013) 221 Cal.App.41h 975, the Court of Appeal held that "there is no right
— and certainly no constitutional right — to cultivate medical marijuana....." The
Court in Maral affirmed the ability of a local governmental entity to prohibit the
cultivation of marijuana under its land use authority.
16. The City Council further takes legislative notice that on October 9, 2015 Governor
Brown signed 3 bills into law (AB 266, AB 243, and SB 643) which collectively
are known as the Medical Marijuana Regulation and Safety Act (hereafter
"MMRSA "). The MMRSA set up a State licensing scheme for commercial
medical marijuana uses while protecting local control by requiring that all such
businesses must have a local license or permit to operate in addition to a State
license. The MMRSA allows the City to completely prohibit commercial medical
marijuana activities.
17. The City Council further takes legislative notice that the MMRSA contains
language that requires the city to prohibit cultivation uses by March 1, 2016 either
expressly or otherwise under the principles of permissive zoning, or the State will
become the sole licensing authority.
18. The Planning Board held a duly noticed public hearing on November 23, 2015 at
which time it considered all evidence presented, both written and oral and at the
end of the hearing voted to adopt a motion recommending that the City Council
adopt this Ordinance.
19. The City Council held a duly noticed public hearing on this Ordinance on January
5, 2016, at which time it considered all evidence presented, both written and oral.
b. Definitions.
As used in this ordinance, the following terms shall be ascribed the following
meanings:
1. Medical marijuana means "marijuana" as that term is defined and used in the Act
and the MMP, to wit, Cal. H &S Code sections 11362.5 through 11362.83.
2. Cultivation means any activity involving the planting, growing, harvesting, drying,
curing, grading, storage, or trimming of cannabis.
3. Medical marijuana dispensary means any facility or location, whether fixed or
mobile, where medical marijuana is provided, sold, made available, or otherwise
distributed to one or more of the following: a primary caregiver, a qualified patient
or a person with an identification card.
4. A Medical Marijuana Dispensary shall not include the following uses, so long as
such uses comply with this Code, Cal. H &S Code Secs. 11362.5, 11362.7 et seq.,
as amended, and other applicable laws:
a) A clinic licensed pursuant to chapter 1 (commencing with section 1200) of
division 2 of the Cal. H &S Code, as amended.
b) A health care facility licensed pursuant to chapter 2 (commencing with
section 1250) of division 2 of the Cal. H &S Code, as amended.
c) A residential care facility for persons with chronic life- threatening illness
licensed pursuant to chapter 3.01 (commencing with section 1568.01) of
division 2 of the Cal. H &S Code, as amended.
d) A residential care facility for the elderly licensed pursuant to chapter 3.2
(commencing with section 1569) of division 2 of the Cal. H &S Code, as
amended.
e) A hospice or a home health agency, licensed pursuant to Chapter 8
(commencing with Sec. 1725) of Division 2 of the Cal. H &S Code, as
amended.
5. Person with an identification card shall have the meaning given that term by Cal.
H &S Code section 11362.7, as amended.
6. Primary caregiver shall have the meaning given that term by Cal. H &S Code
section 11362.7, as amended.
7. Qualified patient shall have the meaning given that term by Cal. H &S Code
section 11362.7, as amended.
c. Operation of medical marijuana dispensaries and the commercial cultivation of
marijuana prohibited.
1. Medical marijuana dispensaries and commercial cultivation of marijuana are
prohibited in the City of Alameda. No person or entity shall cultivate marijuana
plants or operate or permit to be operated a medical marijuana dispensary in or
upon any premises in the city. The City shall not issue, approve or grant any
permit, license or other entitlement for commercial cultivation of marijuana or the
establishment or operation of a medical marijuana dispensary.
2. This section shall not apply to cultivation by a qualified patient cultivating
marijuana pursuant to California Health and Safety Code Section 11362.5 if the
area he or she uses to cultivate does not exceed 100 square feet and he or she
cultivates for his or her personal medical use and does not sell, distribute, donate,
or provide marijuana to any other person or entity.
In addition, this section shall not apply to a primary caregiver cultivating marijuana
pursuant to California Health and Safety Code Section 11362.5 if the area he or
she uses to cultivate marijuana does not exceed 500 square feet and he or she
cultivates exclusively for the personal medical use of no more than five specified
qualified patients for whom he or she is the primary caregiver within the meaning
of Section 11362.7 and does not receive remuneration for these activities, except
for compensation provided in full compliance with subdivision (c) of Section
11362.765. The area used to cultivate marijuana shall be measured by the
aggregate area of vegetative growth of live marijuana plants on the premises.
Presiding Off ic r of the Co ncil
Attest:
Lara Weisiger, Cityti rk
I, the undersigned, hereby certify that the foregoing Ordinance was duly
and regularly adopted and passed by the Council of the City of Alameda in a regular
meeting assembled on the 19th day of January, 2016, by the following vote to wit:
AYES: Councilmembers Daysog, Ezzy Ashcraft, Matarrese and
Mayor Spencer — 4.
NOES: Councilmember Oddie - 1.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official
seal of said City this 20th day of January, 2016.
Lara Weisiger, City_Clerk
City of Alameda
Approved as to form:
Jan ,O'C. Kern, City Attorney
CitV of Alameda