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HomeMy WebLinkAboutAgenda Report - November 1, 2017 J-01TM CITY OF LODI COUNCIL COMMUNICATION AGENDA ITEM J-01 AGENDA TITLE: Ordinance No. 1947 Entitled, "An Ordinance of the Lodi City Council Amending Lodi Municipal Code Title 9 — Public Peace, Morals and Welfare — by Repealing Chapter 9.30, 'Medical Marijuana,' in Its Entirety; Amending Lodi Municipal Code Title 8 — Health and Safety — by Repealing Chapter 8.30, 'Marijuana Cultivation,' in Its Entirety; and Further Enacting Chapter 8.30, `Regulation of Medicinal and Adult - Use Cannabis within the City of Lodi" MEETING DATE: November 1, 2017 PREPARED BY: City Clerk RECOMMENDED ACTION: Motion waiving reading in full and (following reading by title) adopting the attached Ordinance No. 1947. BACKGROUND INFORMATION: Ordinance No. 1947 entitled, "An Ordinance of the Lodi City Council Amending Lodi Municipal Code Title 9 — Public Peace, Morals and Welfare — by Repealing Chapter 9.30, 'Medical Marijuana,' in Its Entirety; Amending Lodi Municipal Code Title 8 — Health and Safety — by Repealing Chapter 8.30, `Marijuana Cultivation,' in Its Entirety; and Further Enacting Chapter 8.30, `Regulation of Medicinal and Adult -Use Cannabis within the City of Lodi," was introduced at the regular City Council meeting of October 18, 2017. ADOPTION: With the exception of urgency ordinances, no ordinance may be passed within five days of its introduction. Two readings are therefore required — one to introduce and a second to adopt the ordinance. Ordinances may only be passed at a regular meeting or at an adjourned regular meeting; except for urgency ordinances, ordinances may not be passed at a special meeting. Id. All ordinances must be read in full either at the time of introduction or at the time of passage, unless a regular motion waiving further reading is adopted by a majority of all council persons present. Cal. Gov't Code § 36934. Ordinances take effect 30 days after their final passage. Cal. Gov't Code § 36937. This ordinance has been approved as to form by the City Attorney. FISCAL IMPACT: Not applicable. FUNDING AVAILABLE: Not applicable. JMF/PMF Attachment APPROVED: Wil14.1 chw.►-.. nifer M. erraiolo City Clerk N:\Administration\CLERK\Council\COUNCOM\Ordinancel .DOC , City Manager ORDINANCE NO. 1947 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC PEACE, MORALS, AND WELFARE — BY REPEALING CHAPTER 9.30, "MEDICAL MARIJUANA," IN ITS ENTIRETY; AMENDING LODI MUNICIPAL CODE TITLE 8 — HEALTH AND SAFETY — BY REPEALING CHAPTER 8.30, "MARIJUANA CULTIVATION," IN ITS ENTIRETY; AND FURTHER ENACTING CHAPTER 8.30, "REGULATION OF MEDICINAL AND ADULT -USE CANNABIS WITHIN THE CITY OF LODI" WHEREAS, in 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code section 11362.5 et seq. and entitled the Compassionate Use Act of 1996 ("CUA"); and WHEREAS, the intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to obtain and use it under limited, specified circumstances; and WHEREAS, on January 1, 2004, Senate Bill 420 (Medical Marijuana Program Act ("MMPA")) became effective to clarify the scope of the CUA and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the CUA; and WHEREAS, Health and Safety Code section 11362.83 expressly allows cities and counties to adopt and enforce ordinances that are consistent with SB 420; and WHEREAS, in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Ca1.4th 729 (2013), the California Supreme Court held that neither the CUA nor the MMPA preempt local regulation; and WHEREAS, on October 11, 2015, the Governor signed into law Senate Bill 643, Assembly Bill 266, and Assembly Bill 243, collectively referred to as the Medical Marijuana Regulation and Safety Act ("MMRSA"), effective January 1, 2016, which established a statewide licensing system for regulating medical marijuana cultivation, manufacturing, delivery, and dispensing with licensing requirements and regulations that are only applicable to cities and counties that permit marijuana cultivation, manufacturing, dispensing, and delivery within their jurisdictions. Under the MMRSA, cities and counties may continue to ban medical marijuana cultivation, manufacturing, dispensing, and/or delivery within their jurisdictions; and WHEREAS, the MMRSA expressly allows cities and counties to ban marijuana cultivation consistent with current state law, including City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Cal.4`' 729 (2013); and WHEREAS, on November 8, 2016, the voters of the State of California approved Proposition 64, which is entitled the Adult Use of Marijuana Act ("AUMA"), and codified as in various sections of the Health and Safety Code and the Business and Professions Code, and to establish a comprehensive system to legalize, control, and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedicinal marijuana, including marijuana products; and WHEREAS, on June 27, 2017, the Governor signed into law Senate Bill 94, entitled the Medical and Adult -Use Cannabis Regulation and Safety Act ("MAUCRSA"), codified in Business 1 and Professions Code section 26000 et seq., to reconcile the regulation of medical marijuana under the MMPA and the MMRSA with AUMA; and WHEREAS, under the Federal Controlled Substances Act (21 U.S.C. §801 et seq.), marijuana is classified as a Schedule 1 drug, meaning it has no accepted medical use. The Federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, transport, or possess with the intent to manufacture, distribute or dispense, marijuana; and WHEREAS, Government Code sections 65850(a) and 65850(c)(4), provide the authority of the City of Lodi to regulate by ordinance the uses of land and the intensity of land use; and WHEREAS, the City of Lodi Police Department and residents of the City of Lodi have reported adverse impacts from the outdoor cultivation of medical marijuana within the City of Lodi, including offensive odors detectable beyond the property boundaries, increased risk of trespassing, violent crime, burglary, and theft; and WHEREAS, the strong odor of marijuana plants, which increases in intensity as the plants mature, is highly offensive to many individuals and creates an attractive nuisance, alerting people to the presence and location of marijuana plants, creating an increased risk of burglary, robbery or armed robbery because of the monetary value of the plants; and WHEREAS, the presence of marijuana plants is an attractive nuisance to minors, creating a potential hazard in areas frequented by minors, such as schools, parks, recreation centers, and similar facilities; and WHEREAS, it is the intention of the City Council of the City of Lodi that nothing in this ordinance be deemed to conflict with the federal Controlled Substances Act (21 U.S.C. §841), by permitting or otherwise allowing any activity which is prohibited under the Act; and WHEREAS, it is the purpose and intent of this ordinance to ensure that marijuana grown for non-commercial medical purposes or non-commercial adult-use remains secure and does not find its way to illicit markets; and WHEREAS, it is the purpose and intent of this ordinance to assist law enforcement personnel to perform their duties effectively and in accordance with California law; and WHEREAS, this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Government Code section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and Section 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated General Plan adoption and zoning ordinance review; and WHEREAS, for the protection of the public's health, safety, and general welfare, the City Council on November 7, 2012, adopted Ordinance No. 1867, an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and imposing a forty-five (45) day moratorium on 1) the outdoor cultivation of medical marijuana within the City of Lodi and 2) the indoor cultivation of medical marijuana that creates a public nuisance; and 2 WHEREAS, for the continued protection of the public's health, safety, and general welfare, the City Council on December 19, 2012, adopted Ordinance No. 1868 entitled an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and imposing an additional moratorium of ten (10) months and fifteen (15) days, as permitted by Government Code section 65858, to maintain the current status quo and to provide time for the City to study the issue further; and WHEREAS, for the continued protection of the public's health, safety, and general welfare, the City Council on November 6, 2013, adopted Ordinance No. 1885 entitled an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and imposing an additional moratorium of one year, as permitted by Government Code section 65858, to maintain the current status quo and to provide time for the City to meet with members of the public, and to study and analyze the complicated legal and practical issues involved in regulating the cultivation of marijuana for medical use, including a review of the City's General Plan and zoning ordinances, and to make recommendations for consideration by the City Council; and WHEREAS, for the continued protection of the public's health, safety, and general welfare, the City Council on October 15, 2104, adopted Ordinance No. 1898 entitled "Regulation of Marijuana Cultivation" banning (1) the outdoor cultivation of medical marijuana with the City of Lodi; and (2) the indoor cultivation of medical marijuana that creates a public nuisance; and WHEREAS, the City Council finds that the cultivation of marijuana within the City limits can adversely affect the health, safety, and well-being of the City and its residents; and WHEREAS, this ordinance allows the indoor cultivation of marijuana in accordance with state law; and WHEREAS, there is evidence of an increased incidence of crime -related secondary impacts in locations associated with marijuana cultivation facilities, medicinal marijuana dispensaries, and in connection with medicinal marijuana deliveries, which is contrary to policies that are intended to promote and maintain the public's health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: Section 1. Lodi Municipal Code Title 9 — Public Peace, Morals and Welfare — is hereby amended by repealing Chapter 9.30, "Medical Marijuana," in its entirety. Section 2. Lodi Municipal Code Title 8 - Health and Safety — is hereby amended by repealing Chapter 8.30, "Marijuana Cultivation," in its entirety, and enacting Chapter 8.30, "Regulation of Medicinal and Adult -Use Cannabis," to read as follows: SECTIONS: 8.30.010 8.30.020 8.30.030 CHAPTER 8.30 REGULATION OF MEDICINAL AND ADULT -USE CANNABIS Purpose and Intent Definitions Establishment and Operation of Medical Marijuana Dispensaries and Adult -Use Commercial Cannabis Sales Prohibited 3 8.30.040 8.30.050 8.30.060 8.30.070 8.30.080 8.30.090 8.30.010 Delivery of Medicinal and Adult -Use Cannabis Prohibited Commercial Cannabis Activity Prohibited Outdoor Cultivation Prohibited Indoor Cultivation Public Nuisance Enforcement and Civil Penalties Purpose and Intent. It is the purpose and intent of this Chapter to prohibit medicinal and adult -use commercial cannabis activities, medicinal and adult -use cannabis deliveries, the outdoor cultivation of either medicinal or adult -use cannabis, and to reasonably regulate the indoor cultivation of medicinal and adult -use of cannabis within the City of Lodi in a manner that protects the health, safety, and welfare of the community. The City Council finds that sanctioning activities related to commercial cannabis (marijuana) is inconsistent with federal law under the Controlled Substances Act (21 U.S.C. §801 et seq.) which lists marijuana as a Schedule 1 drug and prohibits the possession, sale, and distribution of marijuana . 8.30.020 Definitions. A. "AMUA" refers to the "Control, Regulate and Tax Adult -Use of Marijuana Act" approved by the voters as Proposition 64 on November 8, 2016, and codified in various sections of the Health and Safety Code and the Business and Professions Code. B. "Cannabis" or "Marijuana" shall have the meaning set forth in Business and Professions Code section 26001(f), as may be amended from time to time, and means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the cannabis plant, its seeds or resin. It does not include industrial hemp, as defined by Health and Safety Code section 11018.5 or the weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product. C. "Commercial Cannabis Activity" shall have the meaning set forth in Business and Professions Code section 26001(k), as may be amended from time to time, and includes the medicinal or adult -use cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or sale of cannabis or cannabis products. Commercial cannabis activity also includes the activities of any business, person or nonprofit licensed by the State of California or other governmental entity under Chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code. D. "Cultivation" shall have the meaning set forth in Business and Professions Code section 26001(1), as may be amended from time to time, and includes the planting, growing, harvesting, drying, curing, grading, or trimming of any cannabis plant(s) or any part(s) thereof for either medicinal or adult use. E. "Delivery" shall have the meaning set forth in Business and Professions Code section 26001(p), as may be amended from time to time, and means the commercial delivery, transfer or transport, or arranging for the delivery, transfer or transport, or the use of any technology platform to arrange for or facilitate the commercial delivery, transfer or transport of medical 4 marijuana, adult -use cannabis, all cannabis edibles, and/or any and all cannabis products to or from any location within the jurisdictional limits of the City of Lodi, and any and all associated business and/or operational activities. F. "Indoors" means within a fully -enclosed and secure structure. G. "MAUCRSA" refers to the "Medicinal and Adult -Use Regulation and Safety Act" signed into law on June 27, 2017, and codified in Business and Professions Code section 26000 et seq. H. "Medical Marijuana" and "Medicinal Cannabis" means marijuana authorized in strict compliance with Health and Safety Code Sections 11362.5 et seq. I. "Outdoor" means any location within the city limits that is not a residential structure (as defined below). J. "Person with an Identification Card" shall have the meaning as set forth in Health and Safety Code Section 11362.7, and as may be amended from time to time. K. "Primary Caregiver" has the meaning set forth in Health and Safety Code Section 11362.7, as may be amended from time to time. L. "Qualified Patient" has the meaning set forth in Health and Safety Code Section 11362.7, as may be amended from time to time. M. "Residential Structure" means a single or multi -family house, an apartment unit, a mobile home, or other similar dwelling located within a residential zoning district. Residential structure includes a greenhouse on the property of the residential structure, but not physically part of the residence, as long as it is fully enclosed, secure, and not visible from any street, sidewalk, or other place freely accessible by the public. 8.30.030 Establishment and Operation of Medical Marijuana Dispensaries and Adult -Use Commercial Cannabis Sales Prohibited. Medical marijuana dispensaries and adult -use commercial cannabis retail or wholesale establishments are prohibited in all zoning districts within the City's jurisdictional limits and shall not be established, operated, or permitted in or upon any premises in the City of Lodi. The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a medical marijuana dispensary or the operation of an adult -use cannabis commercial, wholesale or retail establishment. No person may be the lessor for property where a medical marijuana dispensary or adult -use cannabis commercial, wholesale or retail establishment is located. 8.30.040 Delivery of Medicinal and Adult -Use Cannabis Prohibited. Delivery of cannabis by any person or entity, including, but not limited to, clinics, collectives, cooperatives and dispensaries, is prohibited in all zoning districts within the City's jurisdictional limits. No permit, license, use permit or variance, whether conditional or otherwise, shall be issued for the establishment of such activity. Any delivery that takes place in violation of any provision of this Chapter is unlawful, and is hereby declared a public nuisance. Nothing in this Chapter is intended to, nor shall it be construed to, make legal any delivery activity that is 5 otherwise prohibited under California law. As an exception to this provision, a person may deliver or transport medicinal cannabis to a qualified patient or person with an identification card for whom the delivering party is the primary caregiver. 8.30.050 Commercial Cannabis Activity Prohibited. Commercial cannabis activity by any person or entity, including, but not limited to, clinics, collectives, cooperatives, dispensaries, commercial or retail establishments, is prohibited in all zones within the City's jurisdictional limits. No permit, license, use permit or variance, whether conditional or otherwise, shall be issued for the establishment of such activity. Any commercial cannabis activity that takes place in violation of any provision of this Chapter is unlawful, and is hereby declared a public nuisance. Nothing in this Chapter is intended to, nor shall it be construed to, make legal any commercial cannabis activity that is otherwise prohibited under California law. 8.30.060 Outdoor Cultivation Prohibited. Outdoor cultivation of cannabis is prohibited in all zoning districts in the City of Lodi. No person owning, renting, leasing, occupying or having charge, possession, or control of any property within the City limits shall cause or allow such property to be used for the outdoor cultivation of cannabis for any purpose. 8.30.070 Indoor Cultivation. A. Indoor cultivation of cannabis is prohibited in all zoning districts of the City, except for residential zones. Cultivation of cannabis is permitted in a residential structure to the extent authorized under the AMUA and MAUCRSA. Indoor cannabis cultivation, including any lighting, plumbing, or electrical components used for cultivation, shall comply with all state and local building and fire codes. The residential structure shall remain at all times a residence, with legally permitted and functioning cooking, sleeping, and sanitation facilities, and with appropriate ingress and egress as required by this code. Cultivation shall not prevent the primary use of these rooms for the cooking of meals, sleeping, and bathing. B. No person owning, renting, leasing, occupying or having charge, possession, or control of any residential structure within the City shall cause or allow indoor cultivation of cannabis to be visible from any street, sidewalk, or other place freely accessible by the public or to allow the odor of marijuana to permeate beyond the boundaries of the parcel or property where the indoor cultivation is occurring. The indoor cultivation of cannabis is prohibited as a home occupation. 8.30.080 Public Nuisance. Any violations of this Ordinance shall be considered and declared to be a public nuisance and may be summarily abated by the City of Lodi pursuant to Civil Code Section 731. 8.30.090 Enforcement and Civil Penalties. A. Nothing in this Ordinance shall be deemed to prevent the City from instituting any appropriate legal procedures to abate, correct, enjoin or restrain any violation of this section, including civil or criminal proceedings. B. In any civil action for injunctive relief brought pursuant to Lodi Municipal Code Chapter 1.10, a court of competent jurisdiction may award reasonable attorney's fees and costs to the prevailing party. 6 C. Any person violating this ordinance shall be guilty of a misdemeanor and may be subject to the penalties set forth in Lodi Municipal Code Chapter 1.08. D. Each day a person is in violation of this chapter shall be considered a separate violation. E. The remedies and relief provided in this section shall be cumulative and in addition to any and all other remedies available to the city under this code and state law. Section 3. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council of the City of Lodi hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional or invalid or ineffective. Section 4. No Mandatory Duty of Care. This Ordinance is riot intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. Section 5: CEQA. This Ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Government Code section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), Section 15060(c)(3) (the activity is not a project as defined in Section 15378), and Section 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for causing a significant effect to the environment. Section 6. Conflict. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. Section 7. Effective Date and PublicationThis Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code section 36933(c)(1). ATTEST: NIFE M. FERRIAOLO ity Clerk 7 Approved this 1st day of November, 2017 OUG KU H E Mayor State of California County of San Joaquin, ss. I, Jennifer M. Ferraiolo, City Clerk of the City of Lodi, do hereby certify that Ordinance No. 1947 was introduced at a regular meeting of the City Council of the City of Lodi on October 18, 2017, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held November 1, 2017 by the following vote: AYES: COUNCIL MEMBERS — Chandler, Nakanishi, and Mayor Kuehne NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — Johnson and Mounce ABSTAIN: COUNCIL MEMBERS — None I further certify that Ordinance No. 1947 was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved to Form: JANICE D. MAGDICH City Attorney NIFER ity Clerk 8 -yyeC44„,,b406 FERRAIOLO Please immediately confirm receipt of this fax by calling 333-6702 CITY OF LODI P. O. BOX 3006 LODI, CALIFORNIA 95241-1910 ADVERTISING INSTRUCTIONS SUBJECT: SUMMARY OF ORDINANCE NO. 1947 PUBLISH DATE: SATURDAY, OCTOBER 21, 2017 LEGAL AD TEAR SHEETS WANTED: One (11 please SEND AFFIDAVIT AND BILL TO: LNS ACCT. #0510052 JENNIFER M. FERRAIOLO, CITY CLERK City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 DATED: THURSDAY, OCTOBER 19, 2017 ORDERED BY: JENNIFER M. FERRAIOLO CITY CLERK /7-2zed-42--, Lin PAMELA M. FARRIS DEPUTY CITY CLERK ELIZABETH BURGOS ADMINISTRATIVE CLERK Verify Appearance of this Legal in the Newspaper — Copy to File SEND PROF OF ADVERTISEMENT. THANK YOGI!! Emailed to the Sentinel at classified1@lodinews.com at (time) on (date) LNS Phoned to confirm receipt of all pages at (time) PMF ES (initials) N:\Administration\CLERK\OrdSummaries\Advins.doc CITY OF LODI ORDINANCE NO. 1947 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC PEACE, MORALS, AND WELFARE — BY REPEALING CHAPTER 9.30, "MEDICAL MARIJUANA," IN ITS ENTIRETY; AMENDING LODI MUNICIPAL CODE TITLE 8 — HEALTH AND SAFETY — BY REPEALING CHAPTER 8.30, "MARIJUANA CULTIVATION," IN ITS ENTIRETY; AND FURTHER ENACTING CHAPTER 8.30, "REGULATION OF MEDICINAL AND ADULT -USE CANNABIS WITHIN THE CITY OF LODI." The purpose of this ordinance is to maintain the existing ban on medical cannabis dispensaries and expand the ban to include commercial and wholesale sales of adult -use cannabis, cannabis edibles, and/or byproducts; continue the ban on all outdoor cultivation of cannabis; allow indoor cultivation of cannabis as permitted under State law; continue the ban on the delivery and processing of medical cannabis and expand the ban to include adult -use cannabis. Introduced October 18, 2017. Adoption to be considered November 1. 2017. AYES: Chandler, Johnson, Nakanishi, and Mayor Kuehne; NOES: Mounce; ABSENT: None. Jennifer M. Ferraiolo, City Clerk City of Lodi October 18, 2017 Certified copy of the full text of this ordinance is available in the office of the Lodi City Clerk. DECLARATION OF POSTING ORDINANCE NO. 1947 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC PEACE, MORALS, AND WELFARE — BY REPEALING CHAPTER 9.30, "MEDICAL MARIJUANA," IN ITS ENTIRETY; AMENDING LODI MUNICIPAL CODE TITLE 8 — HEALTH AND SAFETY — BY REPEALING CHAPTER 8.30, "MARIJUANA CULTIVATION," IN ITS ENTIRETY; AND FURTHER ENACTING CHAPER 8.30, "REGULATION OF MEDICINAL AND ADULT -USE CANNABIS WITHIN THE CITY OF LODI" On Thursday, October 19, 2017, in the City of Lodi, San Joaquin County, California, a certified copy of Ordinance No. 1947 (attached hereto, marked Exhibit "A") was posted in the Lodi City Clerk's Office. declare under penalty of perjury that the foregoing is true and correct. Executed on October 19, 2017, at Lodi, California. ORDERED BY: JENNIFER M. FERRAIOLO CITY CLERK Pamela M. Farris Elizabeth Burgos Deputy City Clerk Administrative Clerk ordsummaries\aaDecPost. d oc EXHIBIT A ORDINANCE NO. 1947 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC PEACE, MORALS, AND WELFARE — BY REPEALING CHAPTER 9.30, "MEDICAL MARIJUANA," IN ITS ENTIRETY; AMENDING LODI MUNICIPAL CODE TITLE 8 — HEALTH AND SAFETY— BY REPEALING CHAPTER 8.30, "MARIJUANA CULTIVATION," IN ITS ENTIRETY; AND FURTHER ENACTING CHAPTER 8.30, "REGULATION OF MEDICINAL AND ADULT -USE CANNABIS WITHIN THE CITY OF LODI" WHEREAS, in 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code section 11362.5 et seq. and entitled the Compassionate Use Act of 1996 ("CUA"); and WHEREAS, the intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to obtain and use it under limited, specified circumstances; and WHEREAS, on January 1, 2004, Senate Bill 420 (Medical Marijuana Program Act ("MMPA")) became effective to clarify the scope of the CUA and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the CUA; and WHEREAS, Health and Safety Code section 11362.83 expressly allows cities and counties to adopt and enforce ordinances that are consistent with SB 420; and WHEREAS, in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Ca1.4th 729 (2013), the California Supreme Court held that neither the CUA nor the MMPA preempt local regulation; and WHEREAS, on October 11, 2015, the Governor signed into law Senate Bill 643, Assembly Bill 266, and Assembly Bill 243, collectively referred to as the Medical Marijuana Regulation and Safety Act ("MMRSA"), effective January 1, 2016, which established a statewide licensing system for regulating medical marijuana cultivation, manufacturing, delivery, and dispensing with licensing requirements and regulations that are only applicable to cities and counties that permit marijuana cultivation, manufacturing, dispensing, and delivery within their jurisdictions. Under the MMRSA, cities and counties may continue to ban medical marijuana cultivation, manufacturing, dispensing, and/or delivery within their jurisdictions; and WHEREAS, the MMRSA expressly allows cities and counties to ban marijuana cultivation consistent with current state law, including City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Ca1.4th 729 (2013); and WHEREAS, on November 8, 2016, the voters of the State of California approved Proposition 64, which is entitled the Adult Use of Marijuana Act ("AUMA"), and codified as in various sections of the Health and Safety Code and the Business and Professions Code, and to establish a comprehensive system to legalize, control, and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedicinal marijuana, including marijuana products; and WHEREAS, on June 27, 2017, the Governor signed into law Senate Bill 94, entitled the Medical and Adult -Use Cannabis Regulation and Safety Act ("MAUCRSA"), codified in Business 1 and Professions Code section 26000 et seq., to reconcile the regulation of medical marijuana under the MMPA and the MMRSA with AUMA; and WHEREAS, under the Federal Controlled Substances Act (21 U.S.C. §801 et seq.), marijuana is classified as a Schedule 1 drug, meaning it has no accepted medical use. The Federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, transport, or possess with the intent to manufacture, distribute or dispense, marijuana; and WHEREAS, Government Code sections 65850(a) and 65850(c)(4), provide the authority of the City of Lodi to regulate by ordinance the uses of land and the intensity of land use; and WHEREAS, the City of Lodi Police Department and residents of the City of Lodi have reported adverse impacts from the outdoor cultivation of medical marijuana within the City of Lodi, including offensive odors detectable beyond the property boundaries, increased risk of trespassing, violent crime, burglary, and theft; and WHEREAS, the strong odor of marijuana plants, which increases in intensity as the plants mature, is highly offensive to many individuals and creates an attractive nuisance, alerting people to the presence and location of marijuana plants, creating an increased risk of burglary, robbery or armed robbery because of the monetary value of the plants; and WHEREAS, the presence of marijuana plants is an attractive nuisance to minors, creating a potential hazard in areas frequented by minors, such as schools, parks, recreation centers, and similar facilities; and WHEREAS, it is the intention of the City Council of the City of Lodi that nothing in this ordinance be deemed to conflict with the federal Controlled Substances Act (21 U.S.C. §841), by permitting or otherwise allowing any activity which is prohibited under the Act; and WHEREAS, it is the purpose and intent of this ordinance to ensure that marijuana grown for non-commercial medical purposes or non-commercial adult -use remains secure and does not find its way to illicit markets; and WHEREAS, it is the purpose and intent of this ordinance to assist law enforcement personnel to perform their duties effectively and in accordance with California law; and WHEREAS, this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Government Code section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and Section 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated General Plan adoption and zoning ordinance review; and WHEREAS, for the protection of the public's health, safety, and general welfare, the City Council on November 7, 2012, adopted Ordinance No. 1867, an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and imposing a forty-five (45) day moratorium on 1) the outdoor cultivation of medical marijuana within the City of Lodi and 2) the indoor cultivation of medical marijuana that creates a public nuisance; and 2 WHEREAS, for the continued protection of the public's health, safety, and general welfare, the City Council on December 19, 2012, adopted Ordinance No. 1868 entitled an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and imposing an additional moratorium of ten (10) months and fifteen (15) days, as permitted by Government Code section 65858, to maintain the current status quo and to provide time for the City to study the issue further; and WHEREAS, for the continued protection of the public's health, safety, and general welfare, the City Council on November 6, 2013, adopted Ordinance No. 1885 entitled an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and imposing an additional moratorium of one year, as permitted by Government Code section 65858, to maintain the current status quo and to provide time for the City to meet with members of the public, and to study and analyze the complicated legal and practical issues involved in regulating the cultivation of marijuana for medical use, including a review of the City's General Plan and zoning ordinances, and to make recommendations for consideration by the City Council; and WHEREAS, for the continued protection of the public's health, safety, and general welfare, the City Council on October 15, 2104, adopted Ordinance No. 1898 entitled "Regulation of Marijuana Cultivation" banning (1) the outdoor cultivation of medical marijuana with the City of Lodi; and (2) the indoor cultivation of medical marijuana that creates a public nuisance; and WHEREAS, the City Council finds that the cultivation of marijuana within the City limits can adversely affect the health, safety, and well-being of the City and its residents; and WHEREAS, this ordinance allows the indoor cultivation of marijuana in accordance with state law; and WHEREAS, there is evidence of an increased incidence of crime -related secondary impacts in locations associated with marijuana cultivation facilities, medicinal marijuana dispensaries, and in connection with medicinal marijuana deliveries, which is contrary to policies that are intended to promote and maintain the public's health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: Section 1. Lodi Municipal Code Title 9 — Public Peace, Morals and Welfare — is hereby amended by repealing Chapter 9.30, "Medical Marijuana," in its entirety. Section 2_ Lodi Municipal Code Title 8 - Health and Safety — is hereby amended by repealing Chapter 8.30, "Marijuana Cultivation," in its entirety, and enacting Chapter 8.30, "Regulation of Medicinal and Adult -Use Cannabis," to read as follows: SECTIONS: 8.30.010 8.30.020 8.30.030 CHAPTER 8.30 REGULATION OF MEDICINAL AND ADULT -USE CANNABIS Purpose and Intent Definitions Establishment and Operation of Medical Marijuana Dispensaries and Adult -Use Commercial Cannabis Sales Prohibited 3 8.30.040 8.30.050 8.30.060 8.30.070 8.30.080 8.30.090 8.30.010 Delivery of Medicinal and Adult -Use Cannabis Prohibited Commercial Cannabis Activity Prohibited Outdoor Cultivation Prohibited Indoor Cultivation Public Nuisance Enforcement and Civil Penalties Purpose and Intent. It is the purpose and intent of this Chapter to prohibit medicinal and adult -use commercial cannabis activities, medicinal and adult -use cannabis deliveries, the outdoor cultivation of either medicinal or adult -use cannabis, and to reasonably regulate the indoor cultivation of medicinal and adult -use of cannabis within the City of Lodi in a manner that protects the health, safety, and welfare of the community. The City Council finds that sanctioning activities related to commercial cannabis (marijuana) is inconsistent with federal law under the Controlled Substances Act (21 U.S.C. §801 et seq.) which lists marijuana as a Schedule 1 drug and prohibits the possession, sale, and distribution of marijuana . 8.30.020 Definitions. A. "AMUA" refers to the "Control, Regulate and Tax Adult -Use of Marijuana Act" approved by the voters as Proposition 64 on November 8, 2016, and codified in various sections of the Health and Safety Code and the Business and Professions Code. B. "Cannabis" or "Marijuana" shall have the meaning set forth in Business and Professions Code section 26001(f), as may be amended from time to time, and means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the cannabis plant, its seeds or resin. It does not include industrial hemp, as defined by Health and Safety Code section 11018.5 or the weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product. C. "Commercial Cannabis Activity" shall have the meaning set forth in Business and Professions Code section 26001(k), as may be amended from time to time, and includes the medicinal or adult -use cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or sale of cannabis or cannabis products. Commercial cannabis activity also includes the activities of any business, person or nonprofit licensed by the State of California or other governmental entity under Chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code. D. "Cultivation" shall have the meaning set forth in Business and Professions Code section 26001(1), as may be amended from time to time, and includes the planting, growing, harvesting, drying, curing, grading, or trimming of any cannabis plant(s) or any part(s) thereof for either medicinal or adult use. E. "Delivery" shall have the meaning set forth in Business and Professions Code section 26001(p), as may be amended from time to time, and means the commercial delivery, transfer or transport, or arranging for the delivery, transfer or transport, or the use of any technology platform to arrange for or facilitate the commercial delivery, transfer or transport of medical 4 marijuana, adult -use cannabis, all cannabis edibles, and/or any and all cannabis products to or from any location within the jurisdictional limits of the City of Lodi, and any and all associated business and/or operational activities. F. "Indoors" means within a fully -enclosed and secure structure. G. "MAUCRSA" refers to the "Medicinal and Adult -Use Regulation and Safety Act" signed into law on June 27, 2017, and codified in Business and Professions Code section 26000 et seq. H. "Medical Marijuana" and "Medicinal Cannabis" means marijuana authorized in strict compliance with Health and Safety Code Sections 11362.5 et seq. "Outdoor" means any location within the city limits that is not a residential structure (as defined below). J. "Person with an Identification Card" shall have the meaning as set forth in Health and Safety Code Section 11362.7, and as may be amended from time to time. K. "Primary Caregiver" has the meaning set forth in Health and Safety Code Section 11362.7, as may be amended from time to time. L. "Qualified Patient" has the meaning set forth in Health and Safety Code Section 11362.7, as may be amended from time to time. M. "Residential Structure" means a single or multi -family house, an apartment unit, a mobile home, or other similar dwelling located within a residential zoning district. Residential structure includes a greenhouse on the property of the residential structure, but not physically part of the residence, as long as it is fully enclosed, secure, and not visible from any street, sidewalk, or other place freely accessible by the public. 8.30.030 Establishment and Operation of Medical Marijuana Dispensaries and Adult -Use Commercial Cannabis Sales Prohibited. Medical marijuana dispensaries and adult -use commercial cannabis retail or wholesale establishments are prohibited in all zoning districts within the City's jurisdictional limits and shall not be established, operated, or permitted in or upon any premises in the City of Lodi. The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a medical marijuana dispensary or the operation of an adult -use cannabis commercial, wholesale or retail establishment. No person may be the lessor for property where a medical marijuana dispensary or adult -use cannabis commercial, wholesale or retail establishment is located. 8.30.040 Delivery of Medicinal and Adult -Use Cannabis Prohibited. Delivery of cannabis by any person or entity, including, but not limited to, clinics, collectives, cooperatives and dispensaries, is prohibited in all zoning districts within the City's jurisdictional limits. No permit, license, use permit or variance, whether conditional or otherwise, shall be issued for the establishment of such activity. Any delivery that takes place in violation of any provision of this Chapter is unlawful, and is hereby declared a public nuisance. Nothing in this Chapter is intended to, nor shall it be construed to, make legal any delivery activity that is 5 otherwise prohibited under California law. As an exception to this provision, a person may deliver or transport medicinal cannabis to a qualified patient or person with an identification card for whom the delivering party is the primary caregiver. 8.30.050 Commercial Cannabis Activity Prohibited. Commercial cannabis activity by any person or entity, including, but not limited to, clinics, collectives, cooperatives, dispensaries, commercial or retail establishments, is prohibited in all zones within the City's jurisdictional limits. No permit, license, use permit or variance, whether conditional or otherwise, shall be issued for the establishment of such activity. Any commercial cannabis activity that takes place in violation of any provision of this Chapter is unlawful, and is hereby declared a public nuisance. Nothing in this Chapter is intended to, nor shall it be construed to, make legal any commercial cannabis activity that is otherwise prohibited under California law. 8.30.060 Outdoor Cultivation Prohibited. Outdoor cultivation of cannabis is prohibited in all zoning districts in the City of Lodi. No person owning, renting, leasing, occupying or having charge, possession, or control of any property within the City limits shall cause or allow such property to be used for the outdoor cultivation of cannabis for any purpose. 8.30.070 Indoor Cultivation. A. Indoor cultivation of cannabis is prohibited in all zoning districts of the City, except for residential zones. Cultivation of cannabis is permitted in a residential structure to the extent authorized under the AMUA and MAUCRSA. Indoor cannabis cultivation, including any lighting, plumbing, or electrical components used for cultivation, shall comply with all state and local building and fire codes. The residential structure shall remain at all times a residence, with legally permitted and functioning cooking, sleeping, and sanitation facilities, and with appropriate ingress and egress as required by this code. Cultivation shall not prevent the primary use of these rooms for the cooking of meals, sleeping, and bathing. B. No person owning, renting, leasing, occupying or having charge, possession, or control of any residential structure within the City shall cause or allow indoor cultivation of cannabis to be visible from any street, sidewalk, or other place freely accessible by the public or to allow the odor of marijuana to permeate beyond the boundaries of the parcel or property where the indoor cultivation is occurring. The indoor cultivation of cannabis is prohibited as a home occupation. 8.30.080 Public Nuisance. Any violations of this Ordinance shall be considered and declared to be a public nuisance and may be summarily abated by the City of Lodi pursuant to Civil Code Section 731. 8.30.090 Enforcement and Civil Penalties. A. Nothing in this Ordinance shall be deemed to prevent the City from instituting any appropriate legal procedures to abate, correct, enjoin or restrain any violation of this section, including civil or criminal proceedings. B. In any civil action for injunctive relief brought pursuant to Lodi Municipal Code Chapter 1.10, a court of competent jurisdiction may award reasonable attorney's fees and costs to the prevailing party. 6 C. Any person violating this ordinance shall be guilty of a misdemeanor and may be subject to the penalties set forth in Lodi Municipal Code Chapter 1.08. D. Each day a person is in violation of this chapter shall be considered a separate violation. E. The remedies and relief provided in this section shall be cumulative and in addition to any and all other remedies available to the city under this code and state law. Section 3. Severabilitv. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council of the City of Lodi hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional or invalid or ineffective. Section 4, No Mandatory Duty of Care. This Ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. Section 5: CEQA. This Ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Government Code section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), Section 15060(c)(3) (the activity is not a project as defined in Section 15378), and Section 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for causing a significant effect to the environment. Section 6, Conflict. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. Section 7. Effective Date and PublicationThis Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code section 36933(c)(1). ATTEST: JENNIFER M. FERRIAOLO City Clerk 7 Approved this day of November, 2017 DOUG KUEHNE Mayor State of California County of San Joaquin, ss. I, Jennifer M. Ferraiolo, City Clerk of the City of Lodi, do hereby certify that Ordinance No. 1947 was introduced at a regular meeting of the City Council of the City of Lodi on October 18, 2017, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held , 2017 by the following vote: AYES: COUNCIL MEMBERS — NOES: COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — I further certify that Ordinance No. 1947 was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved to Form: JANICE D. MAGDICH City Attorney JENNIFER M. FERRAIOLO City Clerk 8 Please immediately confirm receipt of this. fax by calling 333-6702 CITY OF LODI P. O. BOX 3006 LODI, CALIFORNIA 95241-1910 ADVERTISING INSTRUCTIONS SUBJECT: SUMMARY OF ORDINANCE NO. 1947 PUBLISH DATE: SATURDAY, NOVEMBER 4, 2017 LEGAL AD TEAR SHEETS WANTED: One (1) please SEND AFFIDAVIT AND BILL TO: LNS ACCT. #0510052 JENNIFER M. FERRAIOLO, CITY CLERK City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 DATED: THURSDAY, NOVEMBER 2, 2017 ORDERED BY: JENNIFER M. FERRAIOLO CITY CLERK PAMELA M. FARRIS DEPUTY CITY CLERK ELIZABETH BURGOS ADMINISTRATIVE CLERK Verify Appearance of this Legal in the Newspaper — Copy to File SEND PROOF OF ADVERTISEMENT. THANK YOU!! Emailed to the Sentinel at classified)@lodinews.com at (time) on (date) LNS Phoned to confirm receipt of all pages at (time) „PMF ES (initials) N: \Administration\CLERK\O rd S um m ar ies\Adv in s. doc CITY OF LODI ORDINANCE NO. 1947 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC PEACE, MORALS, AND WELFARE — BY REPEALING CHAPTER 9.30, "MEDICAL MARIJUANA," IN ITS ENTIRETY; AMENDING LODI MUNICIPAL CODE TITLE 8 — HEALTH AND SAFETY — BY REPEALING CHAPTER 8.30, "MARIJUANA CULTIVATION," IN ITS ENTIRETY; AND FURTHER ENACTING CHAPTER 8.30, "REGULATION OF MEDICINAL AND ADULT -USE CANNABIS WITHIN THE CITY OF LODI." The purpose of this ordinance is to maintain the existing ban on medical cannabis dispensaries and expand the ban to include commercial and wholesale sales of adult -use cannabis, cannabis edibles, and/or byproducts; continue the ban on all outdoor cultivation of cannabis; allow indoor cultivation of cannabis as permitted under State law; continue the ban on the delivery and processing of medical cannabis and expand the ban to include adult -use cannabis. introduced October 18, 2017. Adopted November 1, 2017, and effective December 1, 2017. AYES: Chandler, Nakanishi, and Mayor Kuehne; NOES: None; ABSENT: Johnson and Mounce. Jennifer M. Ferraiolo, City Clerk City of Lodi November 1, 2017 Certified copy of the full text of this ordinance is available in the office of the Lodi City Clerk. DECLARATION OF POSTING ORDINANCE NO. 1947 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC PEACE, MORALS, AND WELFARE — BY REPEALING CHAPTER 9.30, "MEDICAL MARIJUANA," IN ITS ENTIRETY; AMENDING LODI MUNICIPAL CODE TITLE 8 — HEALTH AND SAFETY — BY REPEALING CHAPTER 8.30, "MARIJUANA CULTIVATION," IN ITS ENTIRETY; AND FURTHER ENACTING CHAPER 8.30, "REGULATION OF MEDICINAL AND ADULT -USE CANNABIS WITHIN THE CITY OF LODI" On Thursday, November 2, 2017, in the City of Lodi, San Joaquin County, California, a certified copy of Ordinance No. 1947 (attached hereto, marked Exhibit "A") was posted in the Lodi City Clerk's Office. I declare under penalty of perjury that the foregoing is true and correct. Executed on November 2, 2017, at Lodi, California. Pamela M. Farris ORDERED BY: JENNIFER M. FERRAIOLO CITY CLERK Elizabeth Burgos Deputy City Clerk Administrative Clerk ordsummaries\aaDecPost. d oc Ear 1 B 1T j ORDINANCE NO. 1947 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC PEACE, MORALS, AND WELFARE — BY REPEALING CHAPTER 9.30, "MEDICAL MARIJUANA," IN ITS ENTIRETY; AMENDING LODI MUNICIPAL CODE TITLE 8 — HEALTH AND SAFETY — BY REPEALING CHAPTER 8.30, "MARIJUANA CULTIVATION," IN ITS ENTIRETY; AND FURTHER ENACTING CHAPTER 8.30, "REGULATION OF MEDICINAL AND ADULT -USE CANNABIS WITHIN THE CITY OF LODI" WHEREAS, in 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code section 11362.5 et seq. and entitled the Compassionate Use Act of 1996 ("CUA"); and WHEREAS, the intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to obtain and use it under limited, specified circumstances; and WHEREAS, on January 1, 2004, Senate Bill 420 (Medical Marijuana Program Act ("MMPA")) )) became effective to clarify the scope of the CUA and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the CUA; and WHEREAS, Health and Safety Code section 11362.83 expressly allows cities and counties to adopt and enforce ordinances that are consistent with SB 420; and WHEREAS, in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Ca1.4th 729 (2013), the California Supreme Court held that neither the CUA nor the MMPA preempt local regulation; and WHEREAS, on October 11, 2015, the Governor signed into law Senate Bill 643, Assembly Bill 266, and Assembly Bill 243, collectively referred to as the Medical Marijuana Regulation and Safety Act ("MMRSA"), effective January 1, 2016, which established a statewide licensing system for regulating medical marijuana cultivation, manufacturing, delivery, and dispensing with licensing requirements and regulations that are only applicable to cities and counties that permit marijuana cultivation, manufacturing, dispensing, and delivery within their jurisdictions. Under the MMRSA, cities and counties may continue to ban medical marijuana cultivation, manufacturing, dispensing, and/or delivery within their jurisdictions; and WHEREAS, the MMRSA expressly allows cities and counties to ban marijuana cultivation consistent with current state law, including City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Cal.4'' 729 (2013); and WHEREAS, on November 8, 2016, the voters of the State of California approved Proposition 64, which is entitled the Adult Use of Marijuana Act ("AMA"), and codified as in various sections of the Health and Safety Code and the Business and Professions Code, and to establish a comprehensive system to legalize, control, and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedicinal marijuana, including marijuana products; and WHEREAS, on June 27, 2017, the Governor signed into law Senate Bill 94, entitled the Medical and Adult -Use Cannabis Regulation and Safety Act ("MAUCRSA"), codified in Business 1 and Professions Code section 26000 et seq., to reconcile the regulation of medical marijuana under the MMPA and the MMRSA with AUMA; and WHEREAS, under the Federal Controlled Substances Act (21 U.S.C. §801 et seq.), marijuana is classified as a Schedule 1 drug, meaning it has no accepted medical use. The Federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, transport, or possess with the intent to manufacture, distribute or dispense, marijuana; and WHEREAS, Government Code sections 65850(a) and 65850(c)(4), provide the authority of the City of Lodi to regulate by ordinance the uses of land and the intensity of land use; and WHEREAS, the City of Lodi Police Department and residents of the City of Lodi have reported adverse impacts from the outdoor cultivation of medical marijuana within the City of Lodi, including offensive odors detectable beyond the property boundaries, increased risk of trespassing, violent crime, burglary, and theft; and WHEREAS, the strong odor of marijuana plants, which increases in intensity as the plants mature, is highly offensive to many individuals and creates an attractive nuisance, alerting people to the presence and location of marijuana plants, creating an increased risk of burglary, robbery or armed robbery because of the monetary value of the plants; and WHEREAS, the presence of marijuana plants is an attractive nuisance to minors, creating a potential hazard in areas frequented by minors, such as schools, parks, recreation centers, and similar facilities; and WHEREAS, it is the intention of the City Council of the City of Lodi that nothing in this ordinance be deemed to conflict with the federal Controlled Substances Act (21 U.S.C. §841), by permitting or otherwise allowing any activity which is prohibited under the Act; and WHEREAS, it is the purpose and intent of this ordinance to ensure that marijuana grown for non-commercial medical purposes or non-commercial adult-use remains secure and does not find its way to illicit markets; and WHEREAS, it is the purpose and intent of this ordinance to assist law enforcement personnel to perform their duties effectively and in accordance with California law; and WHEREAS, this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Government Code section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and Section 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated General Plan adoption and zoning ordinance review; and WHEREAS, for the protection of the public's health, safety, and general welfare, the City Council on November 7, 2012, adopted Ordinance No. 1867, an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and imposing a forty-five (45) day moratorium on 1) the outdoor cultivation of medical marijuana within the City of Lodi and 2) the indoor cultivation of medical marijuana that creates a public nuisance; and 2 WHEREAS, for the continued protection of the public's health, safety, and general welfare, the City Council on December 19, 2012, adopted Ordinance No. 1868 entitled an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and imposing an additional moratorium of ten (10) months and fifteen (15) days, as permitted by Government Code section 65858, to maintain the current status quo and to provide time for the City to study the issue further; and WHEREAS, for the continued protection of the public's health, safety, and general welfare, the City Council on November 6, 2013, adopted Ordinance No. 1885 entitled an Uncodified Interim Urgency Ordinance of the City Council of the City of Lodi, making findings and imposing an additional moratorium of one year, as permitted by Government Code section 65858, to maintain the current status quo and to provide time for the City to meet with members of the public, and to study and analyze the complicated legal and practical issues involved in regulating the cultivation of marijuana for medical use, including a review of the City's General Plan and zoning ordinances, and to make recommendations for consideration by the City Council; and WHEREAS, for the continued protection of the public's health, safety, and general welfare, the City Council on October 15, 2104, adopted Ordinance No. 1898 entitled "Regulation of Marijuana Cultivation" banning (1) the outdoor cultivation of medical marijuana with the City of Lodi; and (2) the indoor cultivation of medical marijuana that creates a public nuisance; and WHEREAS, the City Council finds that the cultivation of marijuana within the City limits can adversely affect the health, safety, and well-being of the City and its residents; and WHEREAS, this ordinance allows the indoor cultivation of marijuana in accordance with state law; and WHEREAS, there is evidence of an increased incidence of crime -related secondary impacts in locations associated with marijuana cultivation facilities, medicinal marijuana dispensaries, and in connection with medicinal marijuana deliveries, which is contrary to policies that are intended to promote and maintain the public's health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: Section 1. Lodi Municipal Code Title 9 — Public Peace, Morals and Welfare — is hereby amended by repealing Chapter 9.30, "Medical Marijuana," in its entirety. Section 2. Lodi Municipal Code Title 8 - Health and Safety — is hereby amended by repealing Chapter 8.30, "Marijuana Cultivation," in its entirety, and enacting Chapter 8.30, "Regulation of Medicinal and Adult -Use Cannabis," to read as follows: SECTIONS: 8.30.010 8.30.020 8.30.030 CHAPTER 8.30 REGULATION OF MEDICINAL AND ADULT -USE CANNABIS Purpose and Intent Definitions Establishment and Operation of Medical Marijuana Dispensaries and Adult -Use Commercial Cannabis Sales Prohibited 3 8.30.040 8.30.050 8.30.060 8.30.070 8.30.080 8.30.090 8.30.010 Delivery of Medicinal and Adult -Use Cannabis Prohibited Commercial Cannabis Activity Prohibited Outdoor Cultivation Prohibited Indoor Cultivation Public Nuisance Enforcement and Civil Penalties Purpose and Intent. It is the purpose and intent of this Chapter to prohibit medicinal and adult -use commercial cannabis activities, medicinal and adult -use cannabis deliveries, the outdoor cultivation of either medicinal or adult -use cannabis, and to reasonably regulate the indoor cultivation of medicinal and adult -use of cannabis within the City of Lodi in a manner that protects the health, safety, and welfare of the community. The City Council finds that sanctioning activities related to commercial cannabis (marijuana) is inconsistent with federal law under the Controlled Substances Act (21 U.S.C. §801 et seq.) which lists marijuana as a Schedule 1 drug and prohibits the possession, sale, and distribution of marijuana . 8.30.020 Definitions. A. "AMUA" refers to the "Control, Regulate and Tax Adult -Use of Marijuana Act" approved by the voters as Proposition 64 on November 8, 2016, and codified in various sections of the Health and Safety Code and the Business and Professions Code. B. "Cannabis" or "Marijuana" shall have the meaning set forth in Business and Professions Code section 26001(f), as may be amended from time to time, and means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the cannabis plant, its seeds or resin. It does not include industrial hemp, as defined by Health and Safety Code section 11018.5 or the weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product. C. "Commercial Cannabis Activity" shall have the meaning set forth in Business and Professions Code section 26001(k), as may be amended from time to time, and includes the medicinal or adult -use cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or sale of cannabis or cannabis products. Commercial cannabis activity also includes the activities of any business, person or nonprofit licensed by the State of California or other governmental entity under Chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code. D. "Cultivation" shall have the meaning set forth in Business and Professions Code section 26001(1), as may be amended from time to time, and includes the planting, growing, harvesting, drying, curing, grading, or trimming of any cannabis plant(s) or any part(s) thereof for either medicinal or adult use. E. "Delivery" shall have the meaning set forth in Business and Professions Code section 26001(p), as may be amended from time to time, and means the commercial delivery, transfer or transport, or arranging for the delivery, transfer or transport, or the use of any technology platform to arrange for or facilitate the commercial delivery, transfer or transport of medical 4 marijuana, adult -use cannabis, all cannabis edibles, and/or any and all cannabis products to or from any location within the jurisdictional limits of the City of Lodi, and any and all associated business and/or operational activities. F. "Indoors" means within a fully -enclosed and secure structure. G. "MAUCRSA" refers to the "Medicinal and Adult -Use Regulation and Safety Act" signed into law on June 27, 2017, and codified in Business and Professions Code section 26000 et seq. H. "Medical Marijuana" and "Medicinal Cannabis" means marijuana authorized in strict compliance with Health and Safety Code Sections 11362.5 et seq. "Outdoor" means any location within the city limits that is not a residential structure (as defined below). J. "Person with an Identification Card" shall have the meaning as set forth in Health and Safety Code Section 11362.7, and as may be amended from time to time. K. "Primary Caregiver" has the meaning set forth in Health and Safety Code Section 11362.7, as may be amended from time to time. L. "Qualified Patient" has the meaning set forth in Health and Safety Code Section 11362.7, as may be amended from time to time. M. "Residential Structure" means a single or multi -family house, an apartment unit, a mobile home, or other similar dwelling located within a residential zoning district. Residential structure includes a greenhouse on the property of the residential structure, but not physically part of the residence, as long as it is fully enclosed, secure, and not visible from any street, sidewalk, or other place freely accessible by the public. 8.30.030 Establishment and Operation of Medical Marijuana Dispensaries and Adult -Use Commercial Cannabis Sales Prohibited. Medical marijuana dispensaries and adult -use commercial cannabis retail or wholesale establishments are prohibited in all zoning districts within the City's jurisdictional limits and shall not be established, operated, or permitted in or upon any premises in the City of Lodi. The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a medical marijuana dispensary or the operation of an adult -use cannabis commercial, wholesale or retail establishment. No person may be the lessor for property where a medical marijuana dispensary or adult -use cannabis commercial, wholesale or retail establishment is located. 8.30.040 Delivery of Medicinal and Adult -Use Cannabis Prohibited. Delivery of cannabis by any person or entity, including, but not limited to, clinics, collectives, cooperatives and dispensaries, is prohibited in all zoning districts within the City's jurisdictional limits. No permit, license, use permit or variance, whether conditional or otherwise, shall be issued for the establishment of such activity. Any delivery that takes place in violation of any provision of this Chapter is unlawful, and is hereby declared a public nuisance. Nothing in this Chapter is intended to, nor shall it be construed to, make legal any delivery activity that is 5 otherwise prohibited under California law. As an exception to this provision, a person may deliver or transport medicinal cannabis to a qualified patient or person with an identification card for whom the delivering party is the primary caregiver. 8.30.050 Commercial Cannabis Activity Prohibited. Commercial cannabis activity by any person or entity, including, but not limited to, clinics, collectives, cooperatives, dispensaries, commercial or retail establishments, is prohibited in all zones within the City's jurisdictional limits. No permit, license, use permit or variance, whether conditional or otherwise, shall be issued for the establishment of such activity. Any commercial cannabis activity that takes place in violation of any provision of this Chapter is unlawful, and is hereby declared a public nuisance. Nothing in this Chapter is intended to, nor shall it be construed to, make legal any commercial cannabis activity that is otherwise prohibited under California law. 8.30.060 Outdoor Cultivation Prohibited. Outdoor cultivation of cannabis is prohibited in all zoning districts in the City of Lodi. No person owning, renting, leasing, occupying or having charge, possession, or control of any property within the City limits shall cause or allow such property to be used for the outdoor cultivation of cannabis for any purpose. 8.30.070 Indoor Cultivation. A. Indoor cultivation of cannabis is prohibited in all zoning districts of the City, except for residential zones. Cultivation of cannabis is permitted in a residential structure to the extent authorized under the AMUA and MAUCRSA. Indoor cannabis cultivation, including any lighting, plumbing, or electrical components used for cultivation, shall comply with all state and local building and fire codes. The residential structure shall remain at all times a residence, with legally permitted and functioning cooking, sleeping, and sanitation facilities, and with appropriate ingress and egress as required by this code. Cultivation shall not prevent the primary use of these rooms for the cooking of meals, sleeping, and bathing. B. No person owning, renting, leasing, occupying or having charge, possession, or control of any residential structure within the City shall cause or allow indoor cultivation of cannabis to be visible from any street, sidewalk, or other place freely accessible by the public or to allow the odor of marijuana to permeate beyond the boundaries of the parcel or property where the indoor cultivation is occurring. The indoor cultivation of cannabis is prohibited as a home occupation. 8.30.080 Public Nuisance. Any violations of this Ordinance shall be considered and declared to be a public nuisance and may be summarily abated by the City of Lodi pursuant to Civil Code Section 731. 8.30.090 Enforcement and Civil Penalties. A. Nothing in this Ordinance shall be deemed to prevent the City from instituting any appropriate legal procedures to abate, correct, enjoin or restrain any violation of this section, including civil or criminal proceedings. B. In any civil action for injunctive relief brought pursuant to Lodi Municipal Code Chapter 1.10, a court of competent jurisdiction may award reasonable attorney's fees and costs to the prevailing party. 6 C. Any person violating this ordinance shall be guilty of a misdemeanor and may be subject to the penalties set forth in Lodi Municipal Code Chapter 1.08. D. Each day a person is in violation of this chapter shall be considered a separate violation. E. The remedies and relief provided in this section shall be cumulative and in addition to any and all other remedies available to the city under this code and state law. Section 3. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council of the City of Lodi hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional or invalid or ineffective. Section 4 No Mandatory Duty of Care. This Ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. Section 5: CEQA. This Ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Government Code section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), Section 15060(c)(3) (the activity is not a project as defined in Section 15378), and Section 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for causing a significant effect to the environment. Section 6. Conflict. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. Section 7. Effective Date and PublicationThis Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code section 36933(c)(1). ATTEST: JENNIFER M. FERRIAOLO City Clerk 7 Approved this 1st day of November, 2017 DOUG KUEHNE Mayor State of California County of San Joaquin, ss. I, Jennifer M. Ferraiolo, City Clerk of the City of Lodi, do hereby certify that Ordinance No. 1947 was introduced at a regular meeting of the City Council of the City of Lodi on October 18, 2017, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held November 1, 2017 by the following vote: AYES: COUNCIL MEMBERS — Chandler, Nakanishi, and Mayor Kuehne NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — Johnson and Mounce ABSTAIN: COUNCIL MEMBERS — None I further certify that Ordinance No. 1947 was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved to Form: JANICE D. MAGDICH City Attorney JENNIFER M. FERRAIOLO City Clerk 8