HomeMy WebLinkAbout06.C- City Attorney RESOLUTION (ID # 4584) DOC ID: 4584 B
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Election
From: Jolena E. Grider M/CC Meeting Date: 08/01/2016
Prepared by: Steven Graham, (909) 384-
5355
Dept: City Attorney Ward(s): All
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Ordering
the Submission of a Proposed Initiative Measure to the Electors of Said City at a
Special Election to be Consolidated with the Presidential Election of November 8, 2016.
(#4584)
Current Business Registration Certificate: Not Applicable
Financial Impact:
Account Budgeted Amount: <<Insert Amount>>
Account No. <<Insert Account No.>>
Account Description: <<Insert Account Description>>
Balance as of: <<Insert Date>>
Balance after approval of this item: <<Insert Amount>>
Please note this balance does not indicate available funding. It does not include non-
encumbered reoccurring expenses or expenses incurred, but not yet processed.
Motion: Adopt the Resolution.
Background:
The Mayor and Common Council, citing public health and safety concerns caused by
Dispensaries and concerned about the status of state and federal law, passed
Ordinance No. MC-1349 in 2011 prohibiting Dispensaries and other marijuana activities
within the City. The current ban makes the establishment or operation of a Dispensary
and other marijuana activities unlawful subject to administrative fines, misdemeanor
criminal prosecution, or civil nuisance abatement. In 2013, the California Supreme
Court upheld local governmental entities' ability to prohibit Dispensaries and other
marijuana activities.
At the July 5 meeting of the Mayor and Common Council meeting, the Mayor and
Common Council directed the City Attorney to prepare a proposed measure regulating
marijuana that the Mayor and Common Council would consider submitting to the
qualified electors of the City.
The City Attorney's Office has met with City staff from the Mayor's Office, City
Manager's Office, Police Department, and Community Development Department to draft
a regulatory framework based on input received at meetings of the Mayor and Common
Council and Legislative Review Committee.
Packet Pg. 538
Updated: 7/26/2016 by Linda Sutherland B
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4584
The proposed measure would enact strict application, license renewal, operating
standards and location restrictions for all marijuana activities within the City. The
proposed measure would have additional operating standards and location restrictions
for marijuana dispensaries.
Unlike the voter initiated initiatives that have or are likely to qualify for the November
election, this measure would reserve to the Mayor and Common Council the ability to
modify, amend, or repeal the regulations as State and Federal Law change with regards
to marijuana.
The proposed measure would also include the ability for the Mayor and Common
Council to set application and regulatory fees in an amount necessary to cover the costs
to the City of regulating marijuana activities.
The measure has language that would render null and void any other initiative that
purports to regulate marijuana activities in the City if this measure receives the most
affirmative votes.
City staff also recommend that the Mayor and Common Council find that passage of this
resolution would not be subject to CEQA review because the activity will not result in a
direct or reasonably foreseeable indirect physical change in the environment and the
passage of this resolution is not a project as defined in Section 15378 because it has no
potential for resulting in physical change of the environment, directly or indirectly.
City Attorney Review:
N/A
Supporting Documents:
Chapter 5.05 Ballot Initiative Reso (DOC)
Chapter 5.05 Ballot Initiative- Exhibit "A" (DOC)
Packet Pg.
Updated: 7/26/2016 by Linda Sutherland B 539
1
RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL ORDERING THE
SUBMISSION OF A PROPOSED INITIATIVE MEASURE TO THE ELECTORS OF
3 SAID CITY AT A SPECIAL ELECTION TO BE CONSOLIDATED WITH THE
4 PRESIDENTIAL ELECTION OF NOVEMBER 8, 2016
5 WHEREAS,there is scheduled a statewide Presidential Election for November 8, 2016; and
6 WHEREAS, on July 5, 2016 the Mayor and Common Council requested that the City Attorney
7 prepare a marijuana regulatory ordinance for consideration at the meeting of August 1, 2016; and
8 WHEREAS,pursuant to authority provided by Elections Code Section 9222 and the Charter of the
9 City of San Bernardino, the Mayor and Common Council desires to submit to the qualified electors
of said City an initiative measure proposing to replace Chapter 5.05 and repeal Section 19.06.026 of
10 the San Bernardino Municipal Code relating to commercial marijuana activities; and
11 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
12
13 SECTION 1. That pursuant to Elections Code 9222 and the Charter of the City of San
14 Bernardino, it is hereby ordered that the following initiative measure proposing to replace
15
Chapter 5.05 and repeal Section 19.06.026 of the San Bernardino Municipal Code be submitted
16
to the qualified electors of said City at a Special Election to be consolidated with the Presidential
17
18 Election of November 8, 2016.
19 SECTION 2. The full text of the measure is set forth in Exhibit "A" to this resolution
20 and is incorporated herein by this reference. Said measure shall appear upon the ballots for said
21
Special Election in substantially the following form:
22
23 MEASURE_ YES NO
COMMERCIAL MARIJUANA ACTIVITY.
24 Shall San Bernardino Municipal Code Chapter 5.05
and Section 19.06.026, which prohibit the sale,
25 possession, cultivation, use, and/or distribution of
26 marijuana be replaced and repealed and the City of
San Bernardino regulate commercial marijuana
27 activity?
28
(I LtLe
1 SECTION 3. That the Mayor and Common Council of the City of San Bernardino
2 hereby find that the submission of this ballot measure to the voters is covered by the general rule
3
that CEQA applies only to projects which have the potential for causing a significant effect on
4
5 the environment. It can be seen with certainty that there is no possibility that this project may
6 have a significant effect on the environment, therefore, the activity is not subject to CEQA under
7 State CEQA Guidelines sec. 15061(b)(3). The proposed ordinance proposes regulations and
8
approvals which, among other things, require a finding that"The location, size, design, and
9
operating characteristics of the proposed Commercial Marijuana Activity will not create any
10
11 unavoidable significant adverse impacts to the environment based on the CEQA review of the
12 project, including significant noise, traffic, odor, or other conditions or situations that may be
13 objectionable or detrimental or adverse to public health, safety and welfare of the residents in the
14
vicinity of the proposed facility..." Section 5.05.070(e)(6). The regulatory framework as a whole,
15
16 and Section 5.05.070 in particular, provides a comprehensive set of environmental criteria that a
17 Commercial Marijuana Activity must meet and results in certainty that there is no possibility that
18 the activity in question may have a significant impact on the environment.
19
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2
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL ORDERING THE
SUBMISSION OF A PROPOSED INITIATIVE MEASURE TO THE ELECTORS OF
2 SAID CITY AT A SPECIAL ELECTION TO BE CONSOLIDATED WITH THE
3 PRESIDENTIAL ELECTION OF NOVEMBER 8,2016
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a meeting thereof, held on the
6
day of , 2016, by the following vote, to wit:
7
Council Members: AYES NAYS ABSTAIN ABSENT
8
9 MARQUEZ
10 BARRIOS
11
VALDIVIA
12
SHORETT
13
14 NICKEL
Is RICHARD
16 MULVIHILL
17
18 Georgeann Hanna, City Clerk
19 The foregoing Resolution is hereby approved this day of ) 2016.
20
21
22 R. Carey Davis, Mayor
City of San Bernardino
23 Approved as to form:
Gary D. Saenz, City Attorney
24
25 By:
26
27
28
3
I AN ORDINANCE OF THE PEOPLE OF THE CITY OF SAN BERNARDINO
2 REPLACING SAN BERNARDINO MUNICIPAL CODE CHAPTER 5.05 AND
REPEALING SECTION 19.06.026 TO REGULATE THE ESTABLISHMENT
3 AND OPERATION OF COMMERCIAL MARIJUANA BUSINESSES
4 WHEREAS, Federal Law (codified at 21 U.S.C. Sections 801 et seq.,
5 entitled the "Controlled Substances Act" ("CSA") makes it unlawful to
manufacture, distribute, or possess any controlled substances, including
6 marijuana, which has, as a Schedule I drug under the CSA, a high potential for
7 abuse and no accepted medical value in treatment; and,
8 WHEREAS, at the General Election held on November 5, 1996, California
voters approved Proposition 215 (codified as Health and Safety Code Section
9 11362.5, and titled the "Compassionate Use Act of 1996" ("CUA")), which
10 provided that "Section 11357, relating to the possession of marijuana, and
Section 11358, relating to the cultivation of marijuana, shall not apply to a
11 patient, or to a patient's primary caregiver, who possesses or cultivates
12 marijuana for the personal medical purposes of the patient upon the written or
oral recommendation or approval of a physician;" and,
13
14 WHEREAS, On January 1, 2004, Senate Bill 420 (codified as Health and
Safety Code Sections 11362.7 et seq. and titled the "Medical Marijuana Program"
15 ("MMP") went into effect and was enacted to clarify the scope of the CUA and to
allow cities and counties to adopt and enforce regulations consistent with the
16 CUA and MMP; and,
17
WHEREAS, medical marijuana dispensaries that have operated
18 unpermitted in the City of San Bernardino and elsewhere have caused
19 significant problems, including burglaries and takeover robberies of dispensaries,
robberies of customers leaving dispensaries, an increase in crime (especially
20 thefts and robberies) in the vicinity of dispensaries, illegal reselling of marijuana
obtained from dispensaries, physicians issuing apparently fraudulent
21 recommendations for the use of marijuana, dispensary staff selling marijuana to
22 customers with obviously counterfeit patient identification cards, street dealers
attempting to sell marijuana to dispensary customers, dispensary customers
23 using marijuana and then driving under the influence of marijuana, the sale of
24 illegal drugs other than marijuana in the dispensaries, sales of marijuana to
minors; and
25
WHEREAS, after studying various alternatives for the regulation of
26 marijuana businesses, considering testimony from members of the public, and
27 reviewing the legal status of marijuana businesses under applicable law, the
Mayor and Common Council find that the regulation and operation of marijuana
28 businesses is necessary to protect the public health, safety, and welfare; and
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1
2 WHEREAS, the City of San Bernardino has a compelling interest in
ensuring that marijuana is not distributed in an illicit manner, in protecting the
3 public health, safety and welfare of its residents and businesses, in preserving
the peace and quiet of the neighborhoods in which marijuana businesses operate,
4 and in providing compassionate access to medical marijuana to its seriously ill
5 residents.
6 NOW, THEREFORE, THE PEOPLE OF THE CITY OF SAN
7 BERNARDINO DO ORDAIN AS FOLLOWS=
8 SECTION 1. The People hereby adopt the recitals and findings set forth
9 above.
10 SECTION 2. Section 19.06.026 of the San Bernardino Municipal Code is
hereby repealed in its entirety.
11
12 SECTION 3. Chapter 5.05 of the San Bernardino Municipal Code is hereby
repealed in its entirety and replaced with the following:
13
14 Chapter 5.05
COMMERCIAL MARIJUANA ACTIVITIES
15
5.05.010 Purpose and Intent.
16
17 It is the purpose and intent of this Chapter to regulate Commercial Marijuana
Activities in order to ensure the health, safety and welfare of the residents of the
18 City of San Bernardino. The regulations in this Chapter are in compliance with
19 the Compassionate Use Act, the Medical Marijuana Program Act, Medical
Marijuana Regulation and Safety Act and the California Health and Safety Code
20 (referred to as "State Law"). Commercial Marijuana Activities shall comply with
all provisions of the San Bernardino Municipal Code ("Code"), State Law, the
21 2008 California Attorney General Guidelines for the Security and Non-Diversion
22 of Marijuana Grown for Medical Use, and all other applicable local and state
laws. Nothing in this Chapter purports to permit activities that are otherwise
23 illegal under state or local law.
24 5.05.020 Definitions.
25
(a) "Accrediting body" means a nonprofit organization that requires
26 conformance to ISO/IEC 17025 requirements and is a signatory to
27 the International Laboratory Accreditation Cooperation Mutual
Recognition Arrangement for Testing.
28
2
I (b) "Applicant," for purposes of this Chapter means the following=
2
3 (1) Owner or owners of a proposed facility, including all persons
or entities having ownership interest other than a security
4 interest, lien, or encumbrance on property that will be used by
5 the facility.
6 (2) If the owner is an entity, "owner" includes within the entity
7 each person participating in the direction, control, or
management of, or having a financial interest in, the proposed
8 facility.
9 (3) If the applicant is a publicly traded company, "owner" means
10 the chief executive officer or any person or entity with an
aggregate ownership interest of 5 percent or more.
11
12 (c) "Cannabis" means the same as "Marijuana."
13 (d) "Commercial Marijuana Activity" includes cultivation,
manufacturing, processing, storing, laboratory testing, labeling,
14 transporting, distribution, or sale of marijuana or a marijuana
15 product.
16 (e) "Cultivation" means any activity involving the planting, growing,
harvesting, drying, curing, grading, or trimming of marijuana.
17
18 (f) "Delivery" means the commercial transfer of marijuana or marijuana
products from a Dispensary. "Delivery" also includes the use by a
19 Dispensary of any technology platform owned and controlled by the
Dispensary, or independently licensed under State Law, that enables
20 persons to arrange for or facilitate the commercial transfer by a
21 licensed Dispensary of marijuana or marijuana products.
22 (g) "Dispensary" means a facility where marijuana, marijuana products,
or devices for the use of marijuana or marijuana products are
23 offered, either individually or in any combination, for retail sale.
24
(h) "Dispensing" means any activity involving the retail sale of
25 marijuana or marijuana products from a Dispensary.
26 (i) "Distribution" means the procurement, sale, and transport of
marijuana and marijuana products between entities licensed
27 pursuant to this Chapter.
28
3
1 (j) "Distributor" means a person licensed under this Chapter to engage
2 in the business of purchasing marijuana from a licensed cultivator,
or marijuana products from a licensed manufacturer, for sale to a
3 licensed dispensary.
4 (k) "Cultivation site" means a facility where marijuana is planted,
5 grown, harvested, dried, cured, graded, or trimmed, or that does all
or any combination of those activities, that holds a valid license
6 pursuant to this Chapter.
7 (1) "Edible marijuana product" means manufactured marijuana that is
8 intended to be used, in whole or in part, for human consumption,
including, but not limited to, chewing gum.
9
(m) "Manufacturer" means a person that conducts the production,
10 preparation, propagation, or compounding of manufactured
11 marijuana, as described in subdivision (o) of this Section, or
marijuana products either directly or indirectly or by extraction
12 methods, or independently by means of chemical synthesis or by a
combination of extraction and chemical synthesis at a fixed location
13 that packages or repackages marijuana or marijuana products or
14 labels or relabels its container, that holds a valid local license
15 pursuant to this Chapter.
16 (n) "Licensee" means a person issued a license under this Chapter to
engage in commercial marijuana activity.
17
(o) "Manufactured marijuana" means raw marijuana that has
18 undergone a process whereby the raw agricultural product has been
19 transformed into a concentrate, an edible product, or a topical
product.
20
(p) "Marijuana" means all parts of the plant Cannabis sativa Linnaeus,
21 Cannabis indica, or Cannabis ruderalis, whether growing or not; the
22 seeds thereof, the resin, whether crude or purified, extracted from
any part of the plant; and every compound, manufacture, salt,
23 derivative, mixture, or preparation of the plant, its seeds, or resin.
"Marijuana" also means the separated resin, whether crude or
24 purified, obtained from marijuana. "Marijuana" also means
25 marijuana as defined by Section 11018 of the Health and Safety
Code as enacted by Chapter 1407 of the Statutes of 1972.
26 "Marijuana" does not include the mature stalks of the plant, fiber
27 produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, derivative, mixture,
28 or preparation of the mature stalks (except the resin extracted
4
I therefrom), fiber, oil, or cake, or the sterilized seed of the plant
2 which is incapable of germination. For the purpose of this Chapter,
"Marijuana" does not mean "industrial hemp" as defined by Section
3 81000 of the Food and Agricultural Code or Section 11018.5 of the
4 Health and Safety Code.
5 (q) "Marijuana concentrate" means manufactured marijuana that has
undergone a process to concentrate the cannabinoid active
6 ingredient, thereby increasing the product's potency.
7 (r) "Manufacturing site" means a location that produces, prepares,
8 propagates, or compounds manufactured marijuana or marijuana
products, directly or indirectly, by extraction methods,
9 independently by means of chemical synthesis, or by a combination
10 of extraction and chemical synthesis, and is owned and operated by a
licensee for these activities.
11
(s) "Marijuana product" means a product containing marijuana,
12 including, but not limited to, concentrates and extractions, intended
13 to be sold for personal use.
14 (t) "Nursery" means a licensee that produces only clones, immature
plants, seeds, and other agricultural products used specifically for
15 the planting, propagation, and cultivation of medical cannabis.
16
(u) "Testing laboratory" means a facility, entity, or site in the City that
17 offers or performs tests of marijuana or marijuana products and that
is both of the following:
18
19 (1) Accredited by an accrediting body that is independent from all
other persons involved in the marijuana industry in the state.
20
(2) Registered with the State Department of Public Health.
21
22 (v) "Transporter" means a person issued a state license by the bureau to
transport medical cannabis or medical cannabis products in an
23 amount above a threshold determined by the bureau between
facilities that have been issued a state license pursuant to this
24 chapter.
25
(w) "Commercial Marijuana Activity Regulatory License" means an
26 official document granted by the City of San Bernardino that
27 specifically authorizes a person to conduct Commercial Marijuana
Activity in the City.
28
5
I (x) "Person" means an individual, firm, partnership, joint venture,
2 association, corporation, limited liability company, estate, trust,
business trust, receiver, syndicate, or any other group or
3 combination acting as a unit and includes the plural as well as the
4 singular number.
5 (y) "Topical cannabis" means a marijuana product intended for external
use.
6
(z) "Transport" means the transfer of marijuana or marijuana products
7 from the permitted business location of one licensee to the permitted
8 business location of another licensee, for the purposes of conducting
Commercial Marijuana Activity authorized pursuant to this
9 Chapter.
10 5.05.030 Scope of this Article.
11
This Chapter applies to any person currently engaged in a Commercial
12 Marijuana Activity in the City of San Bernardino, or who engages in a
13 Commercial Marijuana Activity after the effective date of this Chapter. Any
person engaging in a Commercial Marijuana Activity in the City of San
14 Bernardino shall operate in conformance with the operating standards set forth
in this Chapter to assure that the Commercial Marijuana Activity is in
15 compliance with State Law and to mitigate the adverse secondary effects from
16 the Commercial Marijuana Activity.
17
5.05.040 License Required.
18
(a) It shall be unlawful for any person to engage in a Commercial
19 Marijuana Activity without a Commercial Marijuana Activity
20 Regulatory License issued by the City of San Bernardino pursuant to
the provisions of this Chapter.
21
(b) Engaging in a Commercial Marijuana Activity without a Commercial
22 Marijuana Activity Regulatory License includes establishing,
23 owning, managing, conducting, leasing to, operating, causing,
permitting, aiding, abetting, suffering or concealing the fact of such
24 an act.
25 (c) Commercial Marijuana Activity Regulatory License types issued by
26 the City of San Bernardino shall include:
27 (1) Type A for persons engaged in Cultivation, operation of a
Cultivation site and/or operation of a Nursery;
28
6
1
2 (2) Type B for persons engaged in manufacturing of Marijuana as
a Manufacturer and/or operation of a Manufacturing Site;
3
(3) Type C for persons engaged in the operation of a Testing
4 Laboratory;
5
(4) Type D for persons engaged in Dispensing and/or operation of
6 a Dispensary, and
7 (5) Type E for persons engaged in Transportation and/or
Distribution.
8
9 (d) A person holding of a Type A license may apply for a Type B license
for the same facility.
10
11 (e) A person holding a Type B license may apply for a Type A license for
the same facility.
12
(f) A person holding a Type C license may not apply for any other type
13 of license.
14 (g) A person holding a Type D license may not apply for any other type
15 of license.
16 (h) A person holding a Type E license may not apply for any other type
17 of license.
18 (i) A separate license shall be required for each facility where a
Commercial Marijuana Activity is engaged in, even if it is an activity
19 covered by the same License Type and the same Licensee.
20 5.05.050 Violations and Penalties.
21
(a) Any person causing, permitting, aiding, abetting, suffering or
22 concealing a violation of this Chapter shall be guilty of a
misdemeanor.
23
24 (b) Each and every violation of this chapter, and each day that a
violation continues, shall constitute a separate violation.
25
(c) The City Attorney, in his or her sound discretion, may prosecute a
26 violation of this Chapter as an infraction, rather than as a
27 misdemeanor, or reduce or agree to the reduction of a previously
filed misdemeanor to an infraction. Any person convicted of an
28 infraction under the provisions of this Chapter shall be punished by
7
I a fine not exceeding one hundred dollars for the first violation, a fine
2 not exceeding two hundred dollars for a second violation within one
year, and a fine not exceeding five hundred dollars for a third
3 violation within one year. A fourth violation of this Chapter within
one year shall be charged as a misdemeanor and may not be reduced
4 to an infraction.
5
(d) Any person convicted of a misdemeanor under the provisions of this
6 Chapter shall be punished by a fine of not more than one thousand
dollars, or by imprisonment in the city jail or county jail for a period
7 not exceeding six months, or by both such fine and imprisonment.
8
(e) In addition to the penalties provided by this section, any person in
9 violation of this Chapter shall be subject to a civil fine pursuant to
the administrative citation provisions of Chapter 9.92 or civil
10 penalty pursuant to the administrative civil penalties provisions of
11 Chapter 9.93.
12 (f) In addition to the penalties provided by this section, any violation of
this Chapter shall be deemed a public nuisance and may be
13 summarily abated by the City. The City may recover any nuisance
14 abatement costs and/or administrative fines relating to such
violations in accordance with Government Code Sections 38773.1
15 and 38773.5 in accordance with Chapter 8.30 of this Code.
16 5.05.060 Nonconforming Use.
17
Any person that at the time of the passage of this Ordinance has engaged in a
18 Commercial Marijuana Activity that does not comply with the requirements of
19 this Chapter must immediately cease the Commercial Marijuana Activity until
such time, if any, when it complies fully with the requirements of this Chapter.
20 No Commercial Marijuana Activity that existed prior to the enactment of this
Chapter shall be deemed to be a legally established use under this Code, and
21 such Commercial Marijuana Activity shall not be entitled to claim legal
22 nonconforming status.
23 5.05.070 License Application
24
(a) Commercial Marijuana Activities are unique and their effect on the
25 surrounding area and City as a whole cannot be determined in
26 advance of a review of the application for a particular proposed
Commercial Marijuana Activity at a particular facility.
27
(b) Any person desiring a Commercial Marijuana Activity Regulatory
28
8
I License required by this Chapter to engage in a Commercial
2 Marijuana Activity shall, prior to engaging in Commercial
Marijuana Activity, complete and file an application to the
3 Community Development Director on a form supplied by the
4 Community Development Department.
5 (c) The application shall be filed together with a nonrefundable fee as
established by resolution of the Mayor and Common Council, to
6 defray the cost of processing the application and investigation
required by this Chapter. The application shall contain all of the
7 following:
8
(1) The address of the property where the Commercial Marijuana
9 Activity will occur;
10 (2) A site plan describing the property with fully dimensioned
11 interior and exterior floor plans including electrical,
mechanical, plumbing, and disabled access compliance
12 pursuant to Title 24 of the State of California Code of
13 Regulations and the federally mandated Americans with
Disabilities Act;
14
(3) Exterior photographs of the entrance(s), exits(s), street
15 frontage(s), parking, front, rear and side(s) of the proposed
®
16 property;
17 (4) Photographs depicting the entire interior of the proposed
property;
18
19 (5) If the property is being rented or leased or is being purchased
under contract, a copy of such lease or contract;
20
(6) If the property is being rented or leased, written proof that the
21 property owner, and landlord if applicable, were given notice
22 that the property will be used to engage in Commercial
Marijuana Activity, and that the property owner, and landlord
23 if applicable, agree(s) to said operations;
24 (7) The name, home address, personal telephone number, title
25 and function(s) of each manager, employee, volunteer of the
Applicant etc.;
26
(8) For each manager, employee, volunteer of the Applicant a
27 fully legible copy of one valid government issued form of photo
28 identification, such as State Driver's License or Identification
9
I Card;
2 (9) Identification of the form of the Applicant (individual,
3 corporation, LLC, etc.);
4 (10) The name and address of the Applicant's current agent for
Service of Process;
5
6 (11) A copy of the Applicant's Board of Equalization Seller's
Permit;
7
(12) A copy of the General Operating Standards, listed in Section
8 5.05.130, and for Type D Applicants, a copy of the Dispensary
9 Operating Standards, listed in Section 5.05.140, containing a
statement dated and signed by the property owner and the
10 Applicant stating under penalty of perjury, that they read,
understand and shall ensure compliance with the
11 aforementioned operating standards;
12
(13) A detailed security plan;
13
(14) A detailed maintenance plan;
14
15 (15) Evidence that the Applicant has acquired all necessary land
use entitlements required under Title 19 of this Code,
16 including any necessary environmental approvals under the
California Environmental Quality Act ("CEQA");
17
18 (16) A statement dated and signed by the property owner and
Applicant stating under penalty of perjury that they have
19 sent via certified mail notice of their intent to seek a
Commercial Marijuana Activity Regulatory License to all
20 property owners of record owning parcels within 1000 feet of
21 the property where the proposed Commercial Marijuana
Activity will occur;
22
(17) A statement dated and signed by the property owner and
23 Applicant stating under penalty of perjury that the property
24 where the proposed Commercial Marijuana Activity will occur
complies with the location restrictions of Sections 5.05.150 and
25 5.05.160; and
26 (18) Approval from the San Bernardino Police Department that
27 each manager, employee, volunteer of the Applicant listed in
(7) of this subdivision has passed a City administered
28 LiveScan background check.
10
1
2 (d) The Director of Community Development shall have sixty (60)
calendar days in which to review the application and investigate the
3 background of the Applicant. The Police Department, Community
Development Department, and the San Bernardino County Fire
4 Department shall inspect the proposed facility and shall make
5 separate recommendations to the Community Development Director
concerning compliance with the foregoing provisions.
6
7 (e) After the sixty (60) day review period, the Director of Community
Development may approve and/or modify a Commercial Marijuana
8 Activity Regulatory License in whole or in part, with or without
9 conditions, only if all of the following findings are made:
10 (1) The application fee required by this Section has been paid;
11 (2) The application conforms in all aspects to the provisions of
12 this Chapter;
13 (3) The Applicant has not made a material misrepresentation or
omission in the application;
14
(4) The Applicant has not had a Commercial Marijuana Activity
15 Regulatory License, or other similar license or permit denied
16 or revoked for cause by the City of San Bernardino or by any
other city, county, or city and county in or out of this state
17 within five (5) years prior to the date of the application;
18 (5) The proposed Commercial Marijuana Activity would comply
19 with all applicable local and state laws including, but not
limited to, health, zoning, fire, and safety requirements;
20
(6) The location, size, design, and operating characteristics of the
21 proposed Commercial Marijuana Activity will not create any
22 unavoidable significant adverse impacts to the environment
based on the CEQA review of the project, including significant
23 noise, traffic, odor, or other conditions or situations that may
be objectionable or detrimental or adverse to public health,
24 safety and welfare of the residents in the vicinity of the
25 proposed CMA facility; and
26 (7) The proposed Commercial Marijuana Activity will not be
27 adverse to the public interest, health, safety, convenience, or
welfare of the City of San Bernardino.
28
11
1 05.05.080 License Expiration.
2
A Commercial Marijuana Activity License shall automatically expire one year
3 after the license is issued unless renewed in conformity with Section 5.05.090. No
license granted herein shall confer any vested right to any person for more than
4 the above-referenced period.
5
5.05.090 License Renewal.
6
7 (a) Applications for the renewal of a Commercial Marijuana Activity
Regulatory License shall be filed with the Director of Community
8 Development at least sixty (60) calendar days before the expiration
9 of the current license but no earlier than ninety (90) days before the
expiration of the current license. Temporary licenses will not be
10 issued. Any Licensee allowing his or her license to lapse or which
license expired during a suspension shall be required to submit a
11 new application and pay the corresponding new application fees.
12
(b) Any Licensee desiring to obtain a renewal of his or her respective
13 license shall file a written application under penalty of perjury on
14 the required form with the Director of Community of Development
who shall conduct a review and investigation. The application shall
15 be accompanied by a nonrefundable filing fee established by
resolution of the Mayor and Common Council to help defray the cost
16 of the review and investigation required by this Chapter. A Licensee
17 shall be required to update the information contained in his or her
original license application and provide any new and/or additional
18 information as may be reasonably required by the Director of
19 Community Development in order to determine whether said permit
should be renewed.
20
(c) After the sixty (60) day review period, the Director of Community
21 Development may approve and/or modify the Commercial Marijuana
22 Activity Regulatory License renewal in whole or in part, with or
without conditions, only if all of the following findings are made:
23
(1) The license renewal fee required by this Section has been paid;
24
25 (2) The license renewal conforms in all aspects to the provisions of
this Chapter;
26
(3) The Licensee has not made a material misrepresentation or
27 omission in the renewal application;
28
12
1 (4) The Licensee has not had a Commercial Marijuana Activity
2 Regulatory License, or other similar license or permit denied
or revoked for cause by the City of San Bernardino or by any
3 other city, county, or city and county in or out of this state
within five (5) years prior to the date of the renewal
4 application;
5
(5) The Licensee has complied with all applicable local and state
6 laws including, but not limited to, health, zoning, fire, and
7 safety requirements;
8 (6) The location, size, design, and operating characteristics of the
Commercial Marijuana Activity has not created any
9 unavoidable significant adverse impacts to the environment
based on the CEQA review of the project performed pursuant
10 to Section 5.05.070, including significant noise, traffic, odor, or
11 other conditions or situations that are objectionable or
detrimental or adverse to public health, safety and welfare of
12 the residents in the vicinity of the facility; and
13
(7) The Commercial Marijuana Activity has not been adverse to
14 the public interest, health, safety, convenience, or welfare of
the City of San Bernardino.
15
16 5.05.100 Revocation of License.
17 (a) The Director of Community Development may revoke or temporarily
suspend a Commercial Marijuana Activity Regulatory License if any
18 of the following findings are made
19
(1) The annual regulatory fee required by Section 5.05.170 has
20 not been paid on the date it was due;
21
(2) The licensee has failed to substantially comply with each and
22 every provision of this Chapter;
23 (3) The licensee has failed to substantially comply with each and
24 every condition of the applicable land use entitlement for the
property;
25
(4) The licensee has made a material misrepresentation or
26 omission on a license application or application for license
27 renewal;
28 (5) The licensee has had a Commercial Marijuana Activity
13
I Regulatory License, or other similar license or permit denied
2 or revoked for cause by the City of San Bernardino or by any
other city, county, or city and county in or out of this state
3 within five (5) years prior to the date of the revocation;
4 (6) The Licensee has failed to substantially comply with any
5 applicable local and state law including, but not limited to any
law relating to health, zoning, fire, and safety requirements;
6
(7) The location, size, design, and operating characteristics of the
7 Commercial Marijuana Activity has created an unavoidable
8 significant adverse impact to the environment, including
significant noise, traffic, odor, or other conditions or situations
9 that are objectionable or detrimental or adverse to public
health, safety and welfare of the residents in the vicinity of the
10 facility; or
11
(8) The Commercial Marijuana Activity has been adverse to the
12 public interest, health, safety, convenience, or welfare of the
13
City of San Bernardino.
14 5.05.110 Interpretation of the Director.
15 The Director of Community Development has the authority to make
16 interpretations of this Chapter.
17 5.05.120 Appeal of Decision or Interpretation.
18 (a) Any person shall have the right to appeal the Director's decision to
19 grant, deny, or revoke a Commercial Marijuana Activity Regulatory
License to the Hearing Officer of the City appointed in conformity
20 with Section 9.93.090 of the San Bernardino Municipal Code.
21 (1) The appeal shall be made to the Office of the City Clerk within
22 fifteen (15) days of the Director's decision.
23 (2) The Hearing Officer shall hold a hearing within sixty (60) days
24 of the date the appeal is filed with the Office of the City Clerk.
25 (3) The Hearing Officer shall render a decision within ten (10)
days of the date the appeal is filed with the Office of the City
26 Clerk.
27
(4) The Hearing Officer shall review the Director's decision under
28 the abuse of discretion standard. The Hearing Officer shall
14
I only reverse the decision of the Director if the Hearing Officer
2 finds that the Director's decision was arbitrary and capricious
and totally lacking in evidentiary support.
3
(b) Any person shall have the right to appeal any interpretation of this
4 Chapter made by the Director.
5
(1) The appeal shall be made to the Office of the City Clerk within
6 fifteen (15) days of the Director's interpretation.
7 (2) The Hearing Officer shall hold a hearing within sixty (60) days
8 of the date the appeal is filed with the Office of the City Clerk.
9 (3) The Hearing Officer shall give deference to the Director's
10 interpretation on appeal.
11 5.05.130 General Operating Standards.
12 The following operating standards shall be applicable to all Licensees.
13
(a) All Commercial Marijuana Activities must occur within a building,
14 that is, indoors within a fully enclosed structure that includes solid
15 walls, and a ceiling, roof, or top.
16 (b) Any facility where the Commercial Marijuana Activity occurs shall
17 have lighting adequate to illuminate the exterior of the building, all
entrances and exits to the building, and all interior portions of the
18 building where Marijuana is located. The lighting shall be sufficient
to readily identify any individual committing a crime anywhere at
19 the location with the location's security camera system.
20
(c) Each Licensee, and all officers, managers, employees, volunteers and
21 agents of the Licensee shall complete a City-administered criminal
background check using LiveScan prior to engaging in a Commercial
22 Marijuana Activity. No Licensee, or any officer, manager, employee,
23 volunteer or agent of Licensee shall have been convicted of, or plead
guilty/no-contest to a felony, misdemeanor drug or weapon charge, or
24 crime of moral turpitude within the previous five years.
25 (d) The facility, interior and exterior, shall be monitored at all times by
26 on-site or internet-based closed-circuit television. The camera and
recording system must be of adequate quality, color rendition and
27 resolution to allow the ready identification of any individual
28 committing a crime anywhere on or adjacent to the location. The
15
I recordings shall be maintained for a period of not less than ninety
2 days and made available to the Police Department upon request. If
the recordings are not voluntarily made available, the Police
3 Department may obtain a warrant or other court order.
4 (e) At all times Marijuana is present, the facility shall have at least one
5 security guard on duty that is licensed, possesses a valid
Department of Consumer Affairs "security guard card," and has a
6 valid San Bernardino Business Registration Certificate.
7 (f) The facility shall have a centrally-monitored fire and burglar alarm
8 system.
q (g) The facility shall contain a fireproof safe.
10 (h) No recommendations from a doctor for medical marijuana shall be
11 issued at the facility.
12 (i) No sales of alcohol or tobacco may take place at the facility.
13 U) No consumption of alcohol, tobacco, or Marijuana may take place at
the facility.
14
15 (k) The facility shall have sufficient odor absorbing ventilation and
exhaust system such that odor generated from the location where
16 the Commercial Marijuana Activity occurs is not detected outside
the property, anywhere on adjacent property or public rights-of-way,
17 or within any other unit located within the same building.
18 (1) No one under 21 years of age shall be permitted to enter the facility.
19
I (m) The Licensee shall provide the name and phone number of an on-site
20 staff person to the Police Department and Community Development
21 Department for notification if there are operational problems at the
facility.
22
(n) The facility shall have posted in a conspicuous place near the
23 entrance a sign directing all complaints to a telephone number
24 provided by the City. The telephone number will be monitored by the
City to receive complaints regarding Licensee. The City may submit
25 complaints to the Licensee. The Licensee shall respond within
twenty-four (24) hours to the City with how the Licensee has or will
26 respond to the complaint.
27 .
(o) The manufacturing of Marijuana Concentrate using volatile solvents
28 is prohibited.
16
1
2 5.05.140 Dispensary Operating Standards.
3 In addition to the General Operating Standards stated above in Section 5.05.130,
Licensees holding a Type D License to engage in Dispensing or operate a
4 Dispensary shall comply with the following standards:
5
(a) If food or edible marijuana products are distributed, the Licensee
6 shall comply which all relevant State and Local Laws pertaining to
7 the preparation, distribution and sale of food.
8 (b) The Licensee shall have a second security guard to monitor the
immediate vicinity of the Dispensary to assure that patrons
9 immediately leave the Dispensary and do not consume Marijuana in
10 the vicinity of the Dispensary.
11 (c) Exterior signage shall be limited to one wall sign not to exceed ten
square feet in area and may not be externally or internally
12 illuminated. Interior signage or advertising may not be visible from
13 the exterior.
14 (d) Hours of Operation shall be limited to: Monday — Saturday 10 a.m. —
15 8 p.m. and Sunday 11 a.m. — 7 p.m.
16 (e) A Dispensary shall notify patrons of the following both verbally and
through posting of a sign in a conspicuous location:
17
(1) Use of medical marijuana shall be limited to the patient
18 identified on the doctor's recommendation. Secondary sale,
19 barter or distribution of medical marijuana is a crime and can
lead to arrest.
20
21 (2) That loitering on and around the Dispensary is prohibited by
California Penal Code § 647(e) and that patrons must
22 immediately leave the site and not consume Marijuana in the
vicinity of the Dispensary, on the property or in the parking
23 lot.
24
(3) Forgery of medical documents is a felony crime.
25
(4) A warning that patrons may be subject to prosecution under
26 federal marijuana laws.
27 (5) That the use of marijuana may impair a person's ability to
28 drive a motor vehicle or operate machinery.
17
1
2 (6) That no person under 21 years of age is permitted within the
Dispensary.
3
(f) A Dispensary shall not provide marijuana to any individual in an
4 amount not consistent with personal use.
5 (g) A Dispensary shall not store more than $500.00 in cash reserves
6 overnight at the facility and shall make at least one daily bank drop
that includes all cash collected on that business day.
7
8 (h) The Delivery of Marijuana or Marijuana Products is prohibited.
9 5.05.150 General Location Restrictions.
10 In addition to any zoning requirements under Title 19 of this Code, the following
11 location restrictions apply to all Licensees.
12 (a) A person may only engage in Commercial Marijuana Activity in the
13 following zones: OIP, IL, IH, and IE.
14 (b) No person may engage in Commercial Marijuana Activity in the
following zones: RE, RL, RS, RU, RM, RMH, RH, CO, CG-1, CG-2,
15 CG-3, CR-1, CR-2, CR-3, CR-4, CH, PCR, PF, PFC, PP, or SP.
16
(c) No person may engage in Commercial Marijuana Activity within 600
17 feet of the following:
18 (1) School;
19
(2) Park;
20
(3) Library; or
21
22 (4) Recreation Center.
23 (d) No person may engage in Commercial Marijuana Activity within 100
feet of any property zoned RE, RL, RS, RU, RM, RMH, or RH.
24
25 (e) No person may engage in Commercial Marijuana Activity within 100
feet of any Religious Facility.
26
5.05.160 Dispensary Location Restrictions
27
28 (a) In addition to the location restrictions found in Section 5.05.150, no
18
1
1 person may engage in Dispensing or operate a Dispensary within
2 1000 feet of any of the following:
3 (1) School;
4 (2) Park;
5
6 (3) Library;
7 (4) Recreation Center;
8 (5) Religious Facility; or
9 (6) Any other licensed Dispensary.
10 (b) No person may operate a Dispensary within 300 feet of any property
11
zoned RE, RL, RS, RU, RM, RMH, or RH.
12 (c) All distances specified in this Chapter shall be measured in a
straight line, without regard to intervening structures, from the
13 nearest point of the property line to the nearest point of the property
14 line of those uses described herein.
15 5.05.170 Fees.
16 In addition to the application fees established by this Chapter, the Mayor and
17 Common Council may pass by resolution a regulatory fee for each license type to
defray the reasonable regulatory costs to the City of San Bernardino for
18 performing investigations, inspections, audits, enforcing orders, and the
19 administrative enforcement and adjudication contemplated by this Chapter.
20 5.05.180 Amendments.
21 Pursuant to Section 9217 of the California Elections Code, the Mayor and
22 Common Council have reserved the right and authority to amend or repeal this
23 Chapter without any restrictions.
24 SECTION 4. MAYOR AND COMMON COUNCIL TO MAKE FUTURE
AMENDMENTS TO VOTER APPROVED ORDINANCE.
25
26 This is a Mayor and Common Council sponsored initiative ordinance which
traditionally would only be subject to amendment by the voters of the City of San
27 Bernardino. However, pursuant to Section 9217 of the California Elections Code
28 the Mayor and Common Council reserve the right and authority to amend or
19
I repeal the ordinance without any restrictions.
2 SECTION 5. COMPETING MEASURES.
3
In the event that this measure and another measure or measures relating to the
4 regulation of marijuana in the City of San Bernardino appear on the same ballot,
5 the provisions of the other measure or measures shall be deemed to be in conflict
with this measure. In the event that this measure shall receive a greater number
6 of affirmative votes required to pass than the other measure or measures, the
7 provisions of this measure shall prevail in their entirety over the competing
measure or measures, and the competing measure or measures shall be null and
8 void.
9 SECTION 6. EFFECTIVE DATE.
10
After its adoption by the voters, this ordinance shall be in full force and effect ten
11 (10) days after the vote is declared by the legislative body, pursuant to the
12 provisions of Elections Code sections 9217 and 15400 and as provided by law.
13 SECTION 8. SEVERABILITY.
14 If any provision of this Ordinance or the application thereof to any person or
15 circumstance is held invalid, such invalidity shall not affect other provisions or
applications of the Ordinance which can be given effect without the invalid
16 provision or application, and to this end the provisions of this ordinance are
17 severable. The People of the City of San Bernardino hereby declare that they
would have adopted this Ordinance irrespective of the invalidity of any particular
18 portion thereof.
19
20
21
22
23
24
25
26
27
28
20
Entered Into Rec. at CC mtg.� l.�
by:
Agenda Item o: pM DODSON & ASSOCIATES
by: � 21-501N. ARROWHEAD AVENUE
City Clerk SAN BERNARDINO, CA 92405
City of San Bernardino TEL(909) 882-3612 • FAX(909) 882-7015
E-MAIL tda e,tdaenv.com L
MEMORANDUM
August 1 , 2016
From: Tom Dodson
To: Mr. Steven P. Graham, Deputy City Attorney
Subj: CEQA compliance for a new Ordinance of the City of San Bernardino to Regulate
the Establishment and Operation of Commercial Marijuana Businesses
The City of San Bernardino is considering adoption of a new ordinance that will
regulate the establishment and operation of commercial marijuana businesses. Formal
opposition has been expressed to the City placing this new ordinance (Chapter 5.05 of
the San Bernardino Municipal Code would be repealed in its entirety and replaced with
a new Chapter 5.05, Commercial Marijuana Activities) on the ballot for approval by the
voters of the City. The primary basis for this opposition is that the City must first
perform a review of the new Chapter 5.05 for compliance with the California
Environmental Quality Act (CEQA). The opposition claims that the City must prepare an
Environmental Impact Report (EIR) as the only available environmental determination to
comply with CEQA, citing Friends of Sierra Madre v. the City of Sierra Madre 25 Cal.4th
165 (2001) ("that the discretionary submission of a ballot measure to the voters by a
city council is not exempt from CEQA") as the basis for this conclusion. The City has
requested that Tom Dodson & Associates (TDA) conduct a professional review of the
available options for processing CEQA compliance based on CEQA the statute and the
State CEQA Guidelines.
What follows is my evaluation of the available CEQA processing options for the City in
this situation. Note the following evaluation is a review of the existing situation based
on 40 years of professional experience as a CEQA practitioner, not a legal review.
Thus, my recommendations should not be viewed as legal advice, but as a professional
review of CEQA processing options from a consultant that has assisted hundreds of
clients to make the most reasonable environmental determination for compliance with
the statute and Guidelines for a given set of circumstances. In order to perform this
analysis the essential first step is to examine the basic action/project being proposed
by the City.
If approved by the City, new Chapter 5.05 of the City's Municipal Code would be placed
before City voters as a ballot measure. If approved by the City's voters, new Chapter
5.05 would allow "Commercial Marijuana Activities" (CMA) to be implemented within
the City of San Bernardino corporate boundaries. However, this authorization is not
open ended. Instead, new Chapter 5.05 creates an elaborate regulatory framework
with which each CMA must comply before it can begin operation in the City. Thus, I
would frame the whole of the project in this instance to consist of not just an open
authorization to implement a CMA within the City, but authorization to implement a
CMA if it meets the regulatory purpose of new Chapter 5.05 which is to protect public
health, safety and welfare of residents and businesses by preserving peace and quiet in
the vicinity of future marijuana businesses that comply with new Chapter 5.05 and are
granted entitlements by the City to operate. The key issue is whether the regulatory
framework established by new Chapter 5.05 eliminates the potential for significant
adverse impact on the environment or forecloses the potential for any physical changes
in the environment. Based on my review of new Chapter 5.05, 1 conclude and
recommend to the City that with a minor text change in the new Chapter the potential
for significant adverse impact can be foreclosed. However, I do not believe the
regulatory framework in new Chapter 5.05 goes so far to eliminate the potential for
any physical change in the environment. By permitting the CMA use as an acceptable
land use (albeit highly circumscribed) within the City, the new Chapter 5.05 will
inherently allow some physical modifications in the environment where such uses are
granted entitlements in the future.
Based on the citation above (Friends of Sierra Madre), the submission of a ballot
measure to the voters by a city council must comply with CEQA requirements and
therefore, it is clearly not automatically exempt from CEQA compliance. However,
CEQA the statute and the State CEQA Guidelines do not automatically require the
preparation of an EIR as the only method of compliance with the statute. CEQA and the
Guidelines create a hierarchy of options for compliance and assign the CEQA lead
agency, in this case the City of San Bernardino, the responsibility of selecting the best
and most appropriate environmental determination for the specific circumstance.
ANALYSIS
The CEQA processing hierarchy goes as follows:
1 . Statutorily Exempt: The statute and Guidelines provide specific types of project
that the legislature has concluded are not subject to the law. Statutory
exemptions are addressed in two sections of the State CEQA Guidelines (Sections
15060, 1 5061 , and 15260 through 15285, and Article 12.5 (Agricultural Housing
which does not apply here).
2. Categorical Exemptions: The statute and Guidelines identify certain types of
projects (list of classes) that have been determined not to have a significant effect
on the environment by the legislature and which are exempt from the provisions
of CEQA (Sections 15300 through 15332).
3. Negative Declarations: If a project is determined to be subject to CEQA, but will
not cause unavoidable significant adverse environmental impacts, a Negative
Declaration can be prepared for the project for consideration and adoption by an
agency's decision making body prior to approving the action/project.
4. EIR: If a project is determined to be subject to CEQA, but will cause any
unavoidable significant adverse impacts, an EIR must be prepared for the project
and the EIR must be certified by the agency's decision making body prior to
approving the action/project.
It is clear that preparation and certification of an EIR would be one mode of complying
with CEQA for new Chapter 5.05. This is the most conservative and time consuming
method of complying with CEQA and even if an EIR must be circulated more than one
time before it can be found adequate (due to legal challenge), an agency will ultimately
be able to approve a project for which an EIR has been prepared and certified.
A Negative Declaration (even with mitigation measures) could also be prepared, but the
opposition has already asserted that it can make a "fair argument" that certain impacts
should be considered significant and adverse and the "fair argument" threshold sets
the bar so low that there is no assurance a Negative Declaration would withstand legal
challenge. A court could require the preparation of an EIR.
I reviewed all 33 classes of projects that are Categorically Exempt. Based on my
review, I conclude that none of the 33 classes of project would specifically include new
Chapter 5.05. Language in Section 15308 (Actions by Regulatory Agencies for
Protection of the Environment) might be stretched to encompass adopting new Chapter
5.05, but I would not recommend this approach because the City does not clearly fall
under the concept of a regulatory agency).
This brings us to the concept of Statutory Exemptions as outlined in the sections
referenced above. I carefully reviewed the exemptions provided in Sections 15260 to
15285. Similar to Categorical Exemptions, I did not find any specific sections that are
directly on point. One section, 15273 (Rates, Tolls, Fares, and Charges) might be
stretched to cover new Chapter 5.05 because the City is seeking to obtain funds to
support regulating CMAs. However, new Chapter 5.05 goes further than just a charge
(authorization of a new land use), so I would not recommend this approach.
The final set of potential Statutory Exemptions derives from the language in Sections
15060 and 15061 of the State CEQA Guidelines, which encompass "Preliminary Review"
of a proposed action, including determining whether it is or is not a "project" subject
to the statute. Section 1 5060( c) states that "An activity is not subject to CEQA if.-
1. The activity does not involve the exercise of discretionary powers by a public
agency;
In this instance the decision to approve and place new Chapter 5.05 on the ballot
is a discretionary action. Therefore, this exemption does not apply to the
proposed project.
2. The activity will not result in a direct or reasonably foreseeable indirect physical
change in the environment; or
In Section 9 of new Chapter 5.05 the text indicates that the City believes this is
the appropriate environmental finding for compliance with CEQA. I do not
concur. For example in Section 5.05.070(e)(6) the text states "the proposed
Commercial Marijuana Activity will not create significant noise, traffic, odor, or
other conditions or situations that may be objectionable or detrimental to other
permitted uses in the vicinity". This is a clear acknowledgment that CMA may
have foreseeable direct or indirect effects on the environment. I do not believe
the finding in Section 5.05.070(e)(6) can be sustained under a legal challenge for
this reason.
3. The activity is not a project as defined in Section 15378.
Based on the California Supreme Court's finding in Friends of Sierra Madre, City
submittal of a ballot measure can and should be construed as a project that is not
exempt from CEQA.
If we are to have access to any other alternative CEQA environmental determination
than preparation of an EIR, our last resort is to the exemptions discussed in Section
15061 , Review for Exemption. Section 15061(b) states: A project is exempt from CEQA
if.
(1) The project is exempt by statute....
We examined this option above and concluded that none of the exemptions by
statute apply to new Chapter 5.05.
(2) The project is exempt pursuant to a categorical exemption....
We examined this option above and concluded that none of the Categorical
Exemptions apply to new Chapter 5.05.
(3) The activity is covered by the general rule that CEQA applies only to project which
have the potential for causing a significant effect on the environment. Where it
can be seen with certainty that there is no possibility that the activity in question
may have a significant effect on the environment, the activity is not subject to
CEQA.
I believe the General Rule exemption outlined above should be used by the City
for new Chapter 5.05 as it is the only plausible CEQA environmental deter-
mination that can be completed in a short time frame and that may withstand
legal challenge. Here is my reasoning and a suggested minor text amendment to
new Chapter 5.05 for consideration. In section 5.05.010 of the proposed
ordinance the text states: "Commercial Marijuana Activities shall comply with all
provisions of the San Bernardino Municipal Code ("Code") , State Law.....and all
other applicable local and state laws." Further, in Section 5.05.070(c)(1 5) the text
states: "Evidence that the Applicant has acquired all necessary land use
entitlements required under Title 19 of this Code, including any necessary
environmental approvals under the California Environmental Quality Act
("CEQA');".
Thus, future individual projects are clearly required to undergo CEQA review using
the City's thresholds of significance. Again, in 5.05.070(e)(6) the text reads as
follows: "The location, size, design, and operating characteristics of the proposed
Commercial Marijuana Activity will not create significant noise, traffic, odor, or
other conditions or situations that may be objectionable or detrimental to other
permitted uses in the vicinity:". This section is establishing a narrow set of
criteria that a CMA must fulfill if it is to be approved. I suggest changing the text
in Section 5.05.070(e)(6) to read: The location, size, design, and operating
characteristics of the proposed Commercial Marijuana Activity will not create any
unavoidable significant adverse impacts to the environment based on the CEQA
review of the project, including significant noise, traffic, odor, or other conditions
or situations that may be objectionable or detrimental or adverse to public health,
safety and welfare of the residents in the vicinity of the proposed CMA facility:"
With this minor text change, the City has provided a comprehensive set of
environmental criteria that a CMA must meet which also results in "certainty that
there is no possibility that the activity in question may have a significant effect on
the environment,".
CONCLUSION
In order to present the most legally defensible CEQA environmental determination, I
recommend that the City utilize the General Rule exemption described in the preceding
text. I have also suggested a minor change in the text that I believe will allow the City
to assert that the "regulatory framework" established in new Chapter 5.05 allows the
City to make a CEQA environmental determination with "certainty that there is no
possibility that the activity in question may have a significant effect on the
environment." With this change no CMA facility could be approved with any significant
adverse environmental impacts. In my professional opinion this requirement is no
more onerous than the limits on land use zones where a CMA facility can be
implemented as outlined in Sections 5.05.1 50 and -160.
Should you have any questions or further wish to discuss the preceding analysis and
recommendations, please do not hesitate to contact me.
4W 904
Tom Dodson