Current illegal dispensaries would be “disqualified” from obtaining future City permits
Published : Friday, November 3, 2017 | 5:10 AM
Following months of meetings, public hearings and discussions of varying courses of action – including shutting off electrical power and water at illegal marijuana dispensaries to force their closures – the Pasadena City Council Monday will vote on a package of amendments to the City’s Zoning Code which prohibit both personal outdoor and commercial cultivation of marijuana citywide.
The new regulations would also prohibit retail sales of marijuana but would allow the delivery of marijuana and marijuana products into the City from commercial marijuana businesses in other jurisdictions.
Under the new regulations, current illegal marijuana dispensary operators would be disqualified from any future city permitting.
The new regulations come after the passage on November 8, 2016, of Proposition 64, known as the Control, Regulate and Tax Adult Use of Marijuana Act (“AUMA”), which legalized the recreational use of marijuana for individuals 21 years of age or older and permitted small scale personal cultivation throughout the State. It also allowed for retail sales and other commercial marijuana activity by cannabis businesses licensed by the State, and established regulatory and taxing schemes for non-medical marijuana activities.
The AUMA does not regulate “permissive zoning,” according to the Planning Department staff report, necessitating the code changes to ban all commercial marijuana activity in the City, including marijuana dispensaries and commercial cultivation within Pasadena.
Official state licensing and regulation will begin January 1, 2018. According to the City’s staff report, the ban on personal outdoor cultivation is intended to be a permanent ban, but the ban on commercial marijuana activities may be revisited in the future.
The City cannot prohibit transportation through Pasadena per state law, and may not want to “restrict the ability of citizens to have marijuana delivered from legitimate retail outlets/dispensaries in other jurisdictions,” the report noted.
The City’s proposed “Resolution of Intent to Legislate Regarding Disqualifying Current Illegal Marijuana Operators” will offer current illegal dispensaries the choice of “continuing to violate the city’s land use regulations, and be prevented from operating in the future, or comply with the local laws and preserving the option to participate in the future should the city permit such activity,” according to the Planning Department report.
The City Council adopted Ordinance No. 7272, on January 11, 2016, which added Chapter 8.77 (“Prohibition of Commercial Marijuana Activity”) to the Pasadena Municipal Code. This action confirmed that marijuana cultivation, processing, and dispensaries are prohibited uses in the City, and that delivery services cannot originate from within Pasadena or deliver to addresses in Pasadena. The City’s complete ban on all marijuana cultivation is now, however, inconsistent with state law.
SB 94, also known as the “Medicinal and Adult-Use Cannabis Regulation and Safety Act,” passed in June of 2017, merges medical and nonmedical marijuana/cannabis regulations into a single regulatory plan, and retains local control by allowing local jurisdictions to regulate or prohibit commercial cannabis activity within their jurisdiction.
Cities like Pasadena, will now have to provide to the Bureau of Cannabis Control a copy of “any ordinance or regulation related to commercial cannabis activity and the name and contact information for the person who will serve as the contact for state licensing authorities regarding commercial sales.
Effective November 9, 2016, AUMA makes it legal for anyone 21 and older to
Smoke or ingest marijuana and marijuana products (subject to certain limitations); possess, obtain, give away, purchase, and process up to one ounce of marijuana and up to 8 grams of concentrated marijuana; Possess, plant, harvest, dry, or process up to six living plants within a single private residence or an enclosed and secure accessory structure to a private residence and possess, plant, harvest, dry, or process up to six living plants upon the grounds of a private residence, unless outdoor cultivation is prohibited by local regulations.
The City may permit, regulate, or prohibit outdoor cultivation of up to six plants on private property for personal consumption, but may not prohibit indoor cultivation of up to six plants within a residence, including a detached accessory structure located on the property.
The new law also specifies that marijuana may not be smoked in public places, including the Rose Bowl and Brookside Golf Course, anywhere tobacco smoking is prohibited, or within 1,000 feet of a school, day care center, or youth center where children are present. AUMA, however, allows for marijuana to be smoked within 1,000 feet of a school, day care center, or youth center where children are present, if it occurs at a private residence or a business licensed to allow for on-site marijuana smoking, and such smoking is not detectable by others at the nearby school, day care center, or youth center.
AUMA also prohibits possession or smoking marijuana on school grounds, or at day care or youth centers when children are present.
The California Bureau of Medical Marijuana Regulation — renamed the Bureau of Cannabis Control — within the Department of Consumer Affairs will regulate and issue twenty different types of licenses to micro-businesses, and businesses engaged in transportation, storage unrelated to manufacturing activities, distribution, testing, and sale of cannabis and cannabis products.
In addition, the Department of Food and Agriculture will regulate and issue licenses to cannabis cultivation businesses, in cities where allowed, and the Department of Public Health will regulate and issue licenses to cannabis manufacturing businesses. It is illegal for a commercial nonmedical (or medical) marijuana business to operate without a state license.
Despite SB 94, local jurisdictions may control whether cannabis businesses can operate in their jurisdiction. State licensing authorities shall not approve an application for a state cannabis license if it would violate a local ordinance or regulation, but it also does not require applicants seeking a state license to provide documentation that they have permission from local authorities to operate their marijuana business.
Cities and counties can still either regulate or completely prohibit outdoor cultivation under AUMA, according to the staff report. However, if the State Attorney General determines at some future time that the recreational use of cannabis is lawful under federal law, then a city would no longer be able to prohibit outdoor cannabis cultivation.
Therefore, says the staff report, while Pasadena may either prohibit or regulate outdoor cultivation of marijuana under AUMA, the City must either passively permit indoor cultivation or reasonably regulate it.
The staff recommendations noted that in November 2016, voters in 37 California cities approved an excise tax for at least one category of marijuana cultivation and/or sales. Thirty of the approved measures included a gross receipts business tax component and 19 included a per square foot tax component. The majority of the gross receipts taxes approved were related to the sale of both medical and recreational marijuana and related products; however, some local agencies also elected to use a gross receipts tax for cultivation and manufacturing.
If an excise tax were levied by Pasadena, according to the staff report , the collection of these taxes would likely be managed through the business license tax process.
Should the regulations be approved, the City Attorney will prepare an ordinance within 60 days to amend the Pasadena Municipal Code.