CITY COUNCIL STAFF REPORT
MEETING DATE: December 16, 2015
PREPARED BY: Jerry Neumayer, Police Captain
APPROVED BY: City Manager
Title
AMENDMENT TO MEDICAL MARIJUANA ORDINANCES
END
RECOMMENDATION(S)
RECOMMENDATION
1. Waive the first and second reading of the ordinance; and
2. Introduce Ordinance Amending Chapter 9.16 and Section 18.02.075 of Morgan Hill Municipal Code Imposing a Ban on Marijuana Cultivation, Delivery, and Dispensaries.
BODY
COUNCIL PRIORITIES, GOALS & STRATEGIES:
Ongoing Priorities
Enhancing public safety
Protecting the environment
Supporting youth
Preserving and cultivating public trust
REPORT NARRATIVE:
In 1996, the voters of the State of California approved Proposition 215, "The Compassionate Use Act of 1996" or "CUA", to enable seriously ill Californians, under the care of a physician, to legally possess, use, and cultivate marijuana for medical use under state law. In 2003, the California Legislature adopted SB 420, the Medical Marijuana Program Act ("MMPA"), which permits qualified patients and their primary caregivers to associate collectively or cooperatively to cultivate marijuana for medical purposes without being subject to criminal prosecution under the California Penal Code. Neither the CUA nor the MMPA require or impose an affirmative duty or mandate upon a local government to allow, authorize, or sanction the establishment of facilities that cultivate or process medical marijuana within its jurisdiction. Under the Federal Controlled Substances Act, the use, possession, and cultivation of marijuana remain unlawful and subject to federal prosecution without regard to a claimed medical need.
On May 25, 2011, City Council added Chapter 9.16 and Section 18.02.075 to the Morgan Hill Municipal Code prohibiting medical marijuana dispensary facilities in Morgan Hill. At that time, the Police Department conducted research of other jurisdictions with medical marijuana dispensaries and determined that such facilities in our community would lead to a potential rise in crime, secondary negative social impacts and associated costs, high enforcement and crime prevention costs, and a high level of difficulty to apply approved conditions on dispensaries.
On October 9, 2015, Governor Jerry Brown signed the "Medical Marijuana Regulation and Safety Act" ("Act") into law. The Act becomes effective January 1, 2016 and contains provisions that govern the cultivating, processing, production, transporting, testing, and distributing of medical marijuana to qualified patients throughout the state. The Act contains statutory provisions that allow local governments to enact ordinances prohibiting marijuana cultivation, processing, delivery, and dispensaries.
According to the Act, if local jurisdictions have not enacted ordinances banning cultivation by March 1, 2016, the State may issue licenses for local cultivation up to 100 square feet per residence. Adopting this ordinance will allow the City to meet the March 1, 2016 timeline for enactment of the ban on cultivation and would prohibit the State from becoming the sole licensing authority for medical marijuana cultivation applicants.
The Police Department is also recommending that medical marijuana mobile dispensaries and delivery services be explicitly banned at this time. Although there is no express deadline to adopt a ban of medical marijuana delivery services as there is with medical marijuana cultivation, if a local jurisdiction does not adopt an express ban before the State begins issuing any State licenses (which is anticipated to begin in January 2018, though it may be sooner), a State-licensed delivery service would be allowed. This is the best practice for local governments as, although adoption of an ordinance banning deliveries after the State begins to issue licenses is permitted, it may be difficult to terminate the State licensee's deliveries at that time.
As always, the Council may later amend the ordinance to allow for local regulation of cultivation and/or delivery services if desired or necessary as state and federal regulation evolves. The new regulatory framework requires dual licensing (local and state) and allows for local control to include authorization, taxation at all steps in the process, and regulatory control.
A local entity could prohibit one or more licensing area(s) but allow others. The State does not anticipate having the regulatory and logistical framework in place to implement the Act until January 2018. Some cities have adopted regulations that allow for the cultivation, delivery, processing, and production of marijuana products within their jurisdiction.
Several California cities have reported negative impacts to the public health, safety, and welfare resulting from marijuana cultivation, processing, and distribution activities, including offensive odors, illegal sales and distribution of marijuana, trespassing, theft, robberies and robbery attempts, fire hazards, and problems associated with mold, fungus, and pests. Based on these negative impacts found in other jurisdictions, the Police Department believes cultivation, delivery, and dispensing of medicinal marijuana in Morgan Hill could result in higher crime, secondary negative social impacts, as well as complicated and costly enforcement efforts. The Department will continue to monitor how other cities are handling all of these issues.
COMMUNITY ENGAGEMENT: Inform
Due to the short frame between Governor Brown signing the Act into California law on October 9, 2015 and the time allowed for local jurisdictions to prohibit medical marijuana cultivation prior to the effective date of March 1, 2016, community engagement was not conducted.
This staff report serves to notify the community of the Police Department’s recommendation to amend Chapter 9.16 and Section 18.02.075 of the Morgan Hill Municipal Code to prohibit marijuana cultivation, delivery, and dispensaries. If Council chooses to support the prohibition on cultivation, dispensing, and delivery of marijuana, Council may change course at a later date at which time extensive community engagement would be conducted.
ALTERNATIVE ACTIONS:
The current Morgan Hill Municipal Code (Chapter 9.16 and Section 18.02.075) deems medical marijuana distribution facilities unlawful and prohibited in all zoning districts in Morgan Hill. However, this code does not address the cultivation and delivery of medical marijuana. Should the Council choose not to amend the ordinance, medical marijuana cultivation will be permitted in Morgan Hill under the State's regulation beginning on March 1, 2016 and the delivery of medical marijuana would be allowed with a State license. It should be noted that the cultivation, processing, transporting, testing, and distribution of medical marijuana continue to be prohibited by the federal government.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
On May 25, 2011, City added Chapter 9.16 and Section 18.02.075 to the Morgan Hill Municipal Code that deemed Medical Marijuana Distribution Facilities unlawful and prohibited in all zoning districts in Morgan Hill.
FISCAL AND RESOURCE IMPACT:
Adoption of this item is unlikely to add to local law enforcement or code enforcement costs, as the City today generally limits this activity in a similar manner to the proposed.
CEQA (California Environmental Quality Act):
Not a Project
Staff recommends the City Council find the introduction and adoption of the ordinance amendments are not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activities will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activities are not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because they have no potential for resulting in physical change to the environment, directly or indirectly.
LINKS/ATTACHMENTS:
1. League of California Cities documents on Medical Marijuana Regulations and Safety Act
2. Proposed Ordinance Amendments