ORDINANCE NO. 2023 - 1535
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN MARCOS, CALIFORNIA, AMENDING SAN MARCOS MUNICIPAL CODE CHAPTER 5.54 (CANNABIS/MARIJUANA) TO PERMIT MEDICINAL CANNABIS DELIVERY IN COMPLIANCE WITH SB 1186 WHEREAS, in 1970, Congress passed the Federal Controlled Substances Act (CSA), which prohibits the possession, cultivation, manufacture and distribution of marijuana, and classifies it as a Schedule 1 drug meaning it has no accepted medicinal value in treatment; and WHEREAS, in 1996, California voters approved Proposition 215, entitled the Compassionate Use Act (CUA) (California Health and Safety (H&S) Code sections 11362.5, et seq.), to ensure that seriously ill individuals have the right to obtain and use marijuana for medical purposes when recommended by a physician. The CUA also exempts patients and their primary caregivers from criminal prosecution or sanctions under State law; and WHEREAS, in 2003, the California Legislature passed Senate Bill 420 to create the Medical Marijuana Program (MMPA) (H&S Code sections 11362.7, et seq.), which established a voluntary State-authorized program for the issuance of medical marijuana identification cards to qualified patients and their primary caregivers, set limits on the amount of medical marijuana any individual could possess, and provided an exemption from State criminal liability for persons “who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes”; and WHEREAS, the United States Supreme Court has continuously found that marijuana, including medical marijuana, violates Federal law under the CSA. In 2001, the Court held in United States v. Oakland Cannabis Buyers Cooperative, et al. that there was no “medical necessity” defense under the CSA, and therefore a medical marijuana dispensary could be enjoined from distribution and manufacturing. In 2005, the Court held in Gonzalez v. Raich that the Commerce Clause authorizes Congress to prohibit the cultivation or use of marijuana for medical purposes permitted by California law. The significance of the Raich decision is that Federal law enforcement agents may continue to enforce Federal drug laws against Californians who cultivate, use or dispense marijuana; and WHEREAS, in 2006, the City Council of the City of San Marcos (City) enacted Chapter 5.54 under the San Marcos Municipal Code (SMMC) to prohibit the establishment of medical marijuana dispensaries as businesses, whether fixed or mobile, in all zones within the City’s jurisdictional limits.
WHEREAS, in 2015, the Governor of California approved the Medical Marijuana Regulation and Safety Act (MMRSA), to create a comprehensive State licensing system for the cultivation, manufacture, transportation, storage, distribution, and sale of medical marijuana through Assembly Bills (AB) 243 and 266 and Senate Bill (SB) 643; and WHEREAS, in January and February 2016, the City Council amended SMMC Chapter 5.54 and Title 20 of the SMMC (Zoning Ordinance), respectively, to expressly and separately prohibit the commercial cultivation of marijuana, the delivery of marijuana, and the processing of marijuana within the City as business operations, activities and land uses; and WHEREAS, on October 25, 2016, pursuant to California Government Code Section 65858, the City Council adopted an urgency ordinance imposing a temporary moratorium, if Proposition 64, also known as the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA) was approved, on the establishment of marijuana dispensaries, the outdoor cultivation and processing of marijuana, the indoor cultivation and processing of marijuana in excess of what is permitted under the AUMA, and the use and possession of marijuana and marijuana products in public places, places where smoking is prohibited under the SMMC and otherwise, and on City property; and WHEREAS, on November 8, 2016, California voters approved the AUMA, which took effect on November 9, 2016, to allow persons 21 years of age and older to (i) smoke, ingest or otherwise use non-medical marijuana and marijuana products; (ii) purchase, possess, transport, obtain or give away without compensation to persons age 21 and older, up to 28.5 grams of marijuana or 8 grams of concentrated marijuana; and (iii) plant, cultivate or process up to six (6) living marijuana plants for personal use; and WHEREAS, on November 15, 2016, the City Council adopted an urgency ordinance to extend the temporary moratorium for a period of ten (10) months and fifteen (15) days to allow the City additional time to study the potential impacts that marijuana operations, activities and uses may have on the public health, safety and welfare as a result of the approval of the AUMA; research and craft appropriate regulations and possible amendments to the provisions of the SMMC and Zoning Ordinance governing marijuana dispensaries, the cultivation and processing of marijuana indoors and outdoors, and the use and possession of marijuana and marijuana products in public places; and to ensure that regulations relating to marijuana operations, activities and uses can be implemented in such a way as to minimize any harmful effects they might have on the City’s residents, as well as nearby businesses and property owners; and WHEREAS, on June 27, 2017, the Governor of California signed into law Senate Bill 94, a budget trailer bill known as the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), which took effect immediately to create a single State regulatory system for medicinal and non-medicinal commercial cannabis businesses. The MAUCRSA repealed the MMRSA adopted in 2015, and incorporated certain provisions from the MMRSA into the licensing provisions of the AUMA to create one consolidated act known as the MAUCRSA; and WHEREAS, on August 8, 2017, the City Council adopted an urgency ordinance to extend the temporary moratorium for a final period of one (1) year through September 30, 2018, to provide additional time for the City to further study the issues surrounding medicinal and non-medicinal cannabis operations, activities and uses following the approval of the MAUCRSA, as well as to modify certain provisions under the SMMC to bring it into conformance with the latest laws, and consider provisions not previously contemplated or expressly identified by the City following the adoption of the MAUCRSA to regulate or prohibit certain operations, activities and uses of the cannabis industry, as desired; and WHEREAS, the MAUCRSA allowed local governments to continue prohibiting or regulating commercial operations, activities and uses relating to cannabis, including, but not limited to, adopting and enforcing zoning and land use requirements and other local regulations prohibiting medicinal and non-medicinal cannabis businesses, including the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery and retail sale of cannabis and cannabis products; enacting and enforcing reasonable regulations relating to the personal cultivation of cannabis indoors, and prohibiting the personal cultivation of cannabis outdoors; and prohibiting the possession, smoking and ingestion of cannabis and cannabis products in public places, places where smoking is prohibited under the SMMC and otherwise, and within buildings owned, leased or occupied by a State or local government agency, among other places; and WHEREAS, California courts have upheld various local regulations governing or prohibiting marijuana cultivation. In County of Tulare v. Nunes (2013), the Court of Appeal held that the CUA and the MMPA do not require Tulare County to define growing marijuana as an acceptable agricultural use of land. (215 Cal.App.4th 1188). Also in 2013, in Browne v. County of Tehama, the Court of Appeal found the MMPA did not preempt a local ordinance declaring that any cultivation of marijuana was a nuisance that could be abated. (213 Cal.App.4th 704). In Maral v. City of Live Oak, also decided in 2013, the Court of Appeal held that the CUA and the MMPA do not preempt a local agency’s police power to prohibit the cultivation of all marijuana within the jurisdiction. (221 Cal.App.4th 975); and WHEREAS, the City’s Municipal Code currently prohibits commercial cannabis activities, including, but not limited to all medicinal and non-medicinal commercial cannabis activities, such as the operation of dispensaries, cooperatives, collectives, microbusinesses or similar establishments where medicinal or non-medicinal cannabis and/or medicinal or non-medicinal cannabis products are sold, and the commercial cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transpiration, delivery or retail, wholesale or other form of sale of medicinal or non-medicinal cannabis and/or medicinal or non-medicinal cannabis products, and any and all associated business and/or operational activities and uses, as well as the outdoor cultivation of cannabis, the indoor cultivation of cannabis in excess of what is permitted under the MAUCRSA, and the use and possession of cannabis and cannabis products in public places, places where smoking is prohibited under the SMMC and otherwise, and within buildings owned, leased or occupied by the City, among other places; and WHEREAS, on September 8, 2022, the Governor of the State of California signed SB 1186 (The Medicinal Cannabis Patients’ Right of Access Act) which, effective January 1, 2024, prohibits local jurisdictions from enforcing any regulations that prohibit or have the effect of prohibiting medicinal cannabis deliveries to medicinal cannabis patients or their primary caregivers; WHEREAS, the City Council desires to modify San Marcos Municipal Code Chapter 5.54 to comply with the legislative mandate.
NOW, THEREFORE, the City Council of the City of San Marcos, California, in accordance with the freedom afforded to charter cities generally, and by the Charter of the City of San Marcos specifically, does ordain as follows:
Section 1. The foregoing recitals are true and correct.
Section 2. The existing San Marcos Municipal Code Chapter 5.54 is hereby amended to read as shown in blacklined, underlined additions and strikeouts, in the attached Exhibit A.
Section 3. The proposed ordinance is not a “project” as defined under Section 15378 of the California Environmental Quality Act Guidelines (California Code of Regulations, Title 14, Division 6, Chapter 3, Sections 15000 – 15387), and is therefore not subject to environmental review pursuant to Guidelines Section 15060(c)(3). Additionally, this ordinance is not subject to CEQA pursuant to Sections 15060(c)(2) and/or 15061(b)(3) of the CEQA Guidelines, in that it will not result in a direct or reasonably foreseeable indirect physical change in the environment nor have a significant impact on the environment.
Section 4. If any section, sentence, clause or phrase of this Ordinance is determined to be invalid, illegal or unconstitutional by a decision or order of any court or agency of competent jurisdiction, then such decision or order will not affect the validity and enforceability of the remaining portions of this Ordinance. The City Council declares that it would have passed and adopted the Ordinance, and each section, sentence, clause or phrase thereof, regardless of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared invalid or unconstitutional.
Section 5. This Ordinance shall be effective thirty (30) days following its adoption. Within fifteen (15) days following the adoption of this Ordinance, the City Clerk shall publish this Ordinance, or the title thereof, as a summary as required by State law.
INTRODUCED at a regular meeting of the City Council of the City of San Marcos held on the 26th day of September, 2023; and PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of San Marcos held on the ____ day of October, 2023, by the following roll call vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
APPROVED:
Rebecca D. Jones, Mayor
ATTEST: APPROVED AS TO FORM:
Phillip Scollick, City Clerk Helen Holmes Peak, City Attorney ATTACHMENTS:
EXHIBIT A – Amended Chapter 5.54 of the San Marcos Municipal Code