HomeMy WebLinkAboutMC-14661
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ORDINANCE NO. MC -1466
ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, ADDING CHAPTER 8.99 TO THE SAN
BERNARDINO MUNICIPAL CODE ESTABLISHING REGULATIONS FOR THE
PERSONAL CULTIVATION OF CANNABIS WITHIN PRIVATE RESIDENCES
(DEVELOPMENT CODE AMENDMENT 18-02C)
WHEREAS, the City of San Bernardino, California ("City") is a municipal
I corporation, duly organized under the Charter of the City of San Bernardino and the
Constitution and laws of the State of California; and,
WHEREAS, at the General Election held on November 5, 1996, California voters
approved Proposition 215, commonly known as the "Compassionate Use Act of 1996"
("CUA") with the purpose of allowing medical patients to cultivate and use cannabis without
fear of State prosecution; and,
WHEREAS, on January 1, 2004, Senate Bill 420 (codified as Health and Safety Code
Sections 11362.7, et seq., entitled the "Medical Marijuana Program Act" ("MMPA") went
into effect with the purpose of clarifying the scope of the CUA allowing cities and counties to
adopt and enforce regulations consistent with the CUA and MMPA; and,
WHEREAS, at the General Election held on November 8, 2016, California voters
approved Proposition 64, commonly known as the "Control, Regulate and Tax Adult Use of
Marijuana Act" ("AUMA"), making it lawful for persons "...21 years of age or older
to ... possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants
and possess the marijuana produced by the plants" (Health & Saf. Code, § 11362.1(a)) subject
to "reasonable regulations" enacted and enforced by the City. (Health & Saf. Code, §
11362.2(b)(1)); and,
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WHEREAS, on October 18, 2017, by Resolution No. 2017-211 the Mayor and City
Council directed the Citizen's Advisory Committee on Marijuana ("CAC") to discuss the
issue of personal cultivation in residential zones and, working with City staff and the City's
consultant HdL, report back to the Mayor and City Council on December 20, 2017; and,
WHEREAS, the Mayor and City Council received the report from the CAC at its
regular meeting on December 20, 2017, and determined there was a need for further time to
adequately consider regulations on personal cultivation of cannabis; and,
WHEREAS, on December 20, 2017, the Mayor and City Council, seeking to protect
the City's authority to regulate personal cultivation, adopted Ordinance No. MC -1452,
establishing a moratorium prohibiting all land use entitlements, building permits, business
licenses and any other applicable approval or decisions for outdoor personal cultivation and
reserving the right to pass regulations for indoor personal cultivation; and,
WHEREAS, on January 22, 2018, the Mayor and City Council held a public
workshop to discuss, among other topics, personal cultivation of cannabis; and,
WHEREAS, on January 22, 2018, the Mayor and City Council opened a duly noticed
public hearing on an extension of the moratorium; and,
WHEREAS, on January 22, 2018, the Mayor and City Council continued the public
hearing to February 1, 2018 to have additional time for public comment on the moratorium;
and
WHEREAS, on February 1, 2018, the Mayor and City Council by a vote of 7-0 voted
to extend the moratorium 10 months and 15 days to December 18, 2018 to allow further
consideration of regulations on personal cultivation; and,
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WHEREAS, on February 1, 2018, the Mayor and City Council directed City staff to
expeditiously prepare regulations for personal cultivation within the City of San Bernardino;
and,
WHEREAS, personal cultivation within residential zones has caused adverse effects
to the health, safety, and welfare of the City's residents, including violations of the City's Fire
and Building Codes; and,
WHEREAS, there is a need to adopt health, safety and welfare regulations to avoid
adverse impacts on the City's residents that may arise from personal cultivation; and,
WHEREAS, the Mayor and City Council have considered the report of the CAC, City
staff recommendations, the report of the City's consultant, HdL, on cannabis issues, the
viewpoints of stakeholders such as Inland Empire NORML, and extensive public comment to
craft this Ordinance; and,
WHEREAS, this Ordinance provides an effective regulatory system for personal
cultivation in the City, and will address potential adverse impacts to the public health, welfare,
and safety, while allowing residents to engage in personal cultivation in a manner consistent
with State law; and
WHEREAS, this Ordinance would allow for indoor cultivation of cannabis in a
private residence or accessory structure in a manner that will ensure any cultivation is safe,
secure, and does not create a public nuisance to others living in the City; and,
WHEREAS, federal law, codified at 21 U.S.C. Sections 801 et seq., entitled the
"Controlled Substances Act" ("CSA") makes it unlawful to possess any controlled substances,
including cannabis, which has, as a Schedule I drug under the CSA, been determined by the
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federal government to have a high potential for abuse and no accepted medical value in
treatment; and,
WHEREAS, nothing in this Ordinance is intended to authorize the possession, use, or
provision of cannabis for purposes that violate federal law.
NOW, THEREFORE, THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO DO ORDAIN AS FOLLOWS:
SECTION 1. INCORPORATION OF RECITALS
The foregoing recitals set forth above are true and correct and are a substantive part of
this Ordinance.
SECTION 2. AUTHORITY
Pursuant to Sections 5 and 7 of Article X1 of the California Constitution, the Charter
of the City of San Bernardino, and State law, including Health and Safety Code Section
11362.2(b)(1), the City of San Bernardino is authorized to adopt ordinances that protect the
health, safety and welfare of its residents and businesses. The adoption of reasonable
regulations on indoor personal cultivation and prohibition on outdoor personal cultivation is a
permissible exercise of this authority.
SECTION 3. ADOPTION OF ORDINANCE
Chapter 8.99, entitled "Personal Cultivation of Cannabis", of Title 8 "Health and
Safety" of the San Bernardino Municipal Code is approved and shall be added to the San
Bernardino Municipal Code as follows:
Chapter 8.99
PERSONAL CULTIVATION OF CANNABIS
8.99.010
Purpose and Intent
8.99.020
Applicability
8.99.030
Definitions
8.99.040
Personal Cultivation of Cannabis
8.99.050
Violations Declared a Public Nuisance
8.99.060
Each Violation a Separate Offense
8.99.070
Criminal Penalties
8.99.080
Remedies Cumulative and Not Exclusive
8.99.010 Purpose and Intent
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The purpose of this Chapter is to impose reasonable regulatory restrictions on the
personal cultivation of cannabis pursuant to State law. This Chapter is not intended to
interfere with a patient's right to use medicinal cannabis pursuant to State law, as may be
amended, nor does it criminalize cannabis possession or cultivation otherwise authorized by
State law. This Chapter is not intended to give any person or entity independent legal
authority to engage in commercial cannabis activity, as it is intended simply to impose
regulatory restrictions regarding personal cultivation of cannabis in the City pursuant to this
Code and State law.
8.99.020 Applicability
Nothing in this title shall be construed to allow any conduct or activity relating to the
cultivation, distribution, dispensing, sale, or consumption of cannabis that is otherwise illegal
under local or state law. Nor shall it be construed, to exempt any activity related to the
cultivation of cannabis from any applicable electrical, plumbing, land use or other building or
land use standards or permitting requirements. No provision of this Chapter shall be deemed a
defense or immunity to any action brought against any person by the San Bernardino County
District Attorney's office, the Attorney General of the State of California or the United States
of America.
8.99.030 Definitions
A. "City" means the City of San Bernardino, California.
B. "Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or
Cannabis ruderalis, or any other strain or varietal of the genus Cannabis that may exist
or be discovered, or developed, that has psychoactive or medical properties, whether
growing or not, including but not limited to the seeds thereof; the resin, whether crude
or purified, extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis"
also means the separated resin, whether crude or purified, obtained from cannabis.
"Cannabis" also means marijuana as defined by California Health and Safety Code
section 11018 and Business and Professions Code section 26001(f), as both may be
amended from time to time. Any reference to cannabis or cannabis products shall
include medical and nonmedical cannabis and medical and nonmedical cannabis
products, unless otherwise specified. Cannabis or cannabis product does not mean
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. Cannabis does not include the mature
stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of
the plant, any other compound, manufacture, salt, derivative, mixture, or preparation
of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the
sterilized seed of the plant which is incapable of germination.
C. "Cannabis Concentrate" means manufactured cannabis that has undergone a process to
concentrate the cannabinoid active ingredient, thereby increasing the product's
potency.
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D. "Commercial cannabis activity" includes the cultivation, possession, manufacture,
distribution, processing, storing, laboratory testing, labeling, transportation,
distribution, or sale of cannabis and cannabis products.
E. "Fully Enclosed and Secure Structure" means within a fully enclosed and secure
structure that complies with the California Building Code, as adopted in the City of
San Bernardino, or, if exempt from permit requirements, that has a complete roof
enclosure supported by connecting walls extended from the ground to the roof, a
foundation, slab or equivalent base to which the floor is secured by bolts or similar
attachments, is secure against unauthorized entry, and is accessible only through one
or more lockable doors and accessible only to the owner or tenant. Walls and roofs
must be constructed of sold materials that cannot be easily broken through such as two
inches by four inch or thicker studs overlaid with 3/8 -inch or thicker plywood or the
equivalent. Plastic sheeting, regardless of gauge, or similar products do not satisfy this
requirement. If indoor grow lights or air filtration systems are used, they must comply
with the California Building, Electrical and Fire Codes as adopted by the City of City
of San Bernardino.
F. "Cannabis cultivation" means any activity involving the planting, growing, harvesting,
drying, curing, grading, or trimming of cannabis, including nurseries.
G. "Personal cultivation" means cannabis cultivation conducted by an individual strictly
for that individual's personal use, possession, processing, transporting, or giving away
without any compensation whatsoever in accordance with this Code and state law,
including but not limited to Health and Safety Code Sections 11362.1 and 11362.2, as
may be amended. Personal cultivation also means and includes cultivation of medical
cannabis conducted by a qualified patient exclusively for his or her personal medical
use, and cultivation conducted by a primary caregiver for the personal medical
purposes of no more than five specified qualified patients for whom he or she is the
primary caregiver, in accordance with state law, including Health and Safety Code
Sections 11362.7 and 11362.765, as may be amended. Except as herein defined,
personal cultivation does not include, and shall not authorize, any cultivation
conducted as part of a business or commercial activity, including cultivation for
compensation or retail or wholesale sales of cannabis.
H. "Indoor cannabis cultivation" means cultivation of cannabis using exclusively artificial
lighting.
I. "Mixed -light cannabis cultivation" means cultivation of cannabis using any
combination of natural and supplemental artificial lighting. Greenhouses, hoop
houses, hot houses and similar structures, or light deprivation systems are included in
this category.
J. "Outdoor cannabis cultivation" means cultivation of cannabis in the open air using no
artificial lighting conducted in the ground or in containers outdoors with no covering.
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Outdoor cultivation does not include greenhouses, hoop houses, hot houses or similar
structures.
K. "Primary caregiver" shall have the same meaning as set forth in Health and Safety
Code Section 113 62.7, as the same may be amended from time to time.
L. "Qualifying patient" or "qualified patient" shall have the same meaning as set forth in
Health and Safety Code Section 11362.7, as the same may be amended from time to
time.
M. "Medical cannabis" or "medicinal cannabis" means cannabis that is intended to be
used for medical cannabis purposes in accordance with the Compassionate Use Act
("CUA," Health and Safety Code section 11362.7 et seq.), the Medical Marijuana
Program Act ("MMPA," Health and Safety Code section 11362.7 et seq.) and the
Medicinal Adult -Use Cannabis Regulation and Safety Act ("MAUCRSA," Division
10 of the Business and Professions Code).
N. "Private Residence" or "Residence" means a house, apartment unit, mobile home or
other similar dwelling which is permitted by the City.
8.99.040 Personal Cultivation of Cannabis
A. Indoor cannabis cultivation and mixed -light cannabis cultivation for personal use is
permitted within all private residential dwellings and accessory structures to all private
residential dwellings within all zoning districts, subject to all of the following
minimum standards:
1. All indoor cannabis cultivation and mixed -light cannabis cultivation for
personal use, including by a qualified patient or primary caregiver, shall occur
in a private residential dwelling or accessory structure to a private residential
dwelling, as those terms are defined in Chapter 19.02 of this Code.
2. No more than six (6) cannabis plants may be cultivated by either a qualified
patient, primary caregiver, or an individual over twenty-one (21) years old at
each private residential dwelling or accessory structure regardless of the
number of qualified patients or adults twenty-one (2 1) and older who reside at
such private residential dwelling. Cultivation of more than six (6) plants per
residential dwelling or accessory structure shall be considered commercial
cannabis activity, not personal cultivation, and shall be subject to all the
requirements for commercial cannabis activity within this Code.
3. Medical cannabis shall only be cultivated by:
i. A qualified patient exclusively for his or her own personal medical use
but who does not provide, donate, sell, or distribute medical cannabis to
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any other person and who can provide a written doctor's
recommendation to the City upon request; or
ii. A primary caregiver who cultivates, possesses, stores, manufactures,
transports, donates, or provides medical cannabis exclusively for the
personal medical purposes of no more than five specified qualified
patients for whom he or she is the primary caregiver, but who does not
receive remuneration for these activities except for compensation in full
compliance with California Health and Safety Code Section
11362.765(c).
4. For persons other than qualified patients or primary caregivers, all personal
cultivation shall be conducted by persons twenty-one (21) years of age or
older. The cumulative total of cannabis plants on the property shall not exceed
six (6) cannabis plants, regardless of the number of persons residing at the
private residential dwelling.
5. Written consent from all owners of the property to cultivate cannabis within
the residential dwelling or in a fully enclosed and secure accessory structure
shall be obtained and shall be kept on the property, and available for inspection
by the Chief of Police or his/her designee upon request. The written consent
shall only be valid for twelve (12) months from the signing of the consent.
6. Cannabis cultivation of medical and nonmedical cannabis for personal use may
occur inside a private residential dwelling and/or an accessory building or
structure on the same parcel, subject to the following restrictions:
i. Structures and equipment used for indoor cannabis cultivation and/or
mixed -light cannabis cultivation, such as indoor grow lights, shall
comply with all applicable zoning, building, electrical and fire code
regulations as adopted by the City.
ii. All accessory buildings and structures used for indoor cannabis
cultivation and/or mixed -light cannabis cultivation shall comply with
the locational and other requirements set forth in Title 19 of this Code.
iii. Personal cultivation of cannabis shall not interfere with the primary
occupancy of the building or structure, including regular use of
kitchen(s) or bathroom(s).
iv. The use of generators to power any cultivation equipment is prohibited.
v. All property improvements, if any, shall comply with the California
Building, Electrical and Fire Codes as adopted by the City.
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vi. Any fully enclosed and secure structure or residence used for cannabis
cultivation shall have a ventilation and filtration system installed that
shall prevent cannabis plant odors from exiting the interior of the
structure and that shall comply with the Building Code adopted by the
City.
vii. No exterior evidence of cannabis cultivation occurring at the property
shall be discernable from the public right-of-way.
viii. Nothing in this section is intended, nor shall it be construed, to preclude
any landlord from limiting or prohibiting personal cultivation of
cannabis by tenants.
ix. Nothing in this section is intended, nor shall it be construed, to
authorize commercial cultivation of cannabis.
x. Nothing in this section is intended, nor shall it be construed, to
authorize any public or private nuisance as specified in this Code.
xi. The cultivation area shall be in a locked space inaccessible to minors,
visitors, vandals, or anyone not authorized to possess cannabis.
7. The area of cultivation shall not adversely affect the health or safety of the
occupants of the private residence or the parcel or any other property by
creating dust, glare, heat, noise, noxious gasses, odor, smoke, traffic, vibration,
mold, or other impacts, and shall not be maintained as to constitute a hazard
due to use or storage of materials, processes, products or wastes.
8. Cultivation shall not occur within any private residential dwelling containing a
day care center, as defined in Chapter 5.10 of this Code.
B. Outdoor cannabis cultivation (i.e. in the open air) is prohibited within all zoning
districts.
C. It shall be unlawful for any person to engage in personal cultivation without
registering with the City of San Bernardino. The registration shall require the person
engaging in personal cultivation to provide their name, address, telephone number, and
any other information determined necessary to protect the health, safety, and welfare
of the residents and businesses of the City by the City Manager or his/her designee.
The registration may require the payment of a fee as set by Resolution of the Mayor
and City Council.
8.99.050 Violations Declared a Public Nuisance
Each and every violation of the provisions of this Chapter is hereby deemed unlawful
and a public nuisance and may be summarily abated by the City Manager, Chief of Police, or
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designee of either of them. The City may recover any nuisance abatement costs and/or
administrative fines relating to such violations in accordance with Government Code Sections
38773.1 and 38773.5 in accordance with Chapter 8.30 of this Code.
8.99.060 Each Violation a Separate Offense
Each and every violation of this Chapter shall constitute a separate violation and shall
be subject to all remedies and enforcement measures authorized by the City of San
Bernardino. Additionally, as a nuisance per se, any violation of this Chapter shall be subject to
injunctive relief, disgorgement and payment to the City for any monies unlawfully obtained,
costs of abatement, costs of investigation, attorney fees, and any other relief or remedy
available at law or in equity.
8.99.070 Criminal Penalties
Any person causing, permitting, aiding, abetting, suffering or concealing a violation of
this Chapter shall be guilty of a misdemeanor, and may, in the discretion of the City Attorney,
be prosecuted as a misdemeanor and upon conviction be subject to a fine not to exceed one
thousand dollars ($1,000) or imprisonment in the city or county jail for a period of not more
than six (6) months, or by both such fine and imprisonment. Each day a violation is
committed or permitted to continue shall constitute a separate offense. The City Attorney, in
his or her sound discretion, may prosecute a violation of this Chapter as an infraction, rather
than a misdemeanor, or reduce or agree to the reduction of a previously filed misdemeanor to
an infraction. Any person convicted of an infraction under this provisions of this Chapter shall
be punished by a fine not exceeding one hundred dollars ($100) for the first violation, a fine
not exceeding two hundred dollars ($200) for a second violation within one year, and a fine
not exceeding five hundred dollars ($500) for a third violation within one year. A fourth
violation of this Chapter within one year shall be charged as a misdemeanor and may not be
reduced to an infraction.
8.99.080 Remedies Cumulative and Not Exclusive
The remedies provided herein are not to be construed as exclusive remedies. The City
is authorized to pursue any proceedings or remedies provided by law.
SECTION 4. REPEAL OF ORDINANCES
All ordinances related to personal cultivation within the City of San Bernardino are
hereby repealed and shall be of no further effect from the effective date of this Ordinance.
SECTION 5. SPECIFIC FINDINGS
The Mayor and City Council, after considering the extensive meetings of the CAC, the
Planning Commission, City staff reports, reports from the City's cannabis consultant HdL,
testimony from stakeholders, and public comment, make the following specific findings:
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(A) The Ordinance is consistent with the General Plan;
(B) The Ordinance is not detrimental to the public interest, health, safety,
convenience, or welfare;
(C) The Ordinance would maintain the appropriate balance of land uses within the
City; and
(D) The subject parcel(s) are physically suitable (including, but not limited to,
access, provision of utilities, compatibility with adjoining land uses, and
absence of physical constraints) for the requested land use designation(s) and
the anticipated land use development(s).
SECTION 6. ENVIRONMENTAL DETERMINATION
The Mayor and City Council of the City of San Bernardino, California, hereby find
and determine that this Ordinance is not subject to environmental review under the California
Environmental Quality Act pursuant to Title 14 of the California Code of Regulations 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) because it has no potential for resulting in a physical change of the
environment, directly or indirectly.
SECTION 7. EFFECTIVE DATE
This Ordinance shall be effective upon the thirty-first (31S) day following its final
passage by a majority vote of the Mayor and City Council.
SECTION 8. SEVERABILITY
While it is the intent of the Mayor and City Council to adopt a regulatory system for
personal cultivation of cannabis within the City of San Bernardino, if any provision of this
Ordinance or the application thereof to any person or circumstances is held invalid, such
invalidity shall not affect other provisions or applications of this Ordinance which can be
given effect without the invalid provision or application, and to this end, the provisions of this
Ordinance are severable. The Mayor and City Council declare that they would have adopted
this Ordinance irrespective of the invalidity of any particular portion thereof.
SECTION 9. PUBLICATION
The City Clerk shall certify to the adoption of this Ordinance and shall cause this Ordinance
to published as provided by State law.
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ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, ADDING CHAPTER 8.99 TO THE SAN
BERNARDINO MUNICIPAL CODE ESTABLISHING REGULATIONS FOR THE
PERSONAL CULTIVATION OF CANNABIS WITHIN PRIVATE RESIDENCES
(DEVELOPMENT CODE AMENDMENT NO. 18-02C)
I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor
and City Council of the City of San Bernardino at a joint regular meeting thereof, held on the
7'h day of March 2018, by the following vote, to wit:
Council Members: AYES
MARQUEZ K
BARRIOS k
VALDIVIA
SHORETT k
NICKEL x
RICHARD X
MULVIHILL -Zk)
NAYS ABSTAIN ABSENT
Georgeann I' anna, CMe', City Clerk
The foregoing Ordinance is hereby approved this 7b day of March 2018.
R. Carey Davis, ayor
City of San Be ardino
Approved as to form:
Gary D. Saenz, City Attorney
By: Z� n
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