Exhibit CC 02-02-2016 Item No. 13 Draft Ordinance No. 16-2140 Amending Cupertino Municipal Code to Prohibit marijuana cultivation, dispensaries, and deliveries and commercial cannabis activitiesOrdinance No.
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WHEREAS, the proposed Ordinance is not a project within the meaning of
section 15378 of the California Environmental Quality Act ("CEQA") Guidelines
because it has no potential for resulting in physical change in the environment, either
directly or ultimately. In the event that this Ordinance is found to be a project under
CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section
15061(b)(3) because it can be seen with certainty to have no possibility of a significant
effect on the environment.
WHEREAS, the City has analyzed the actions taken with this proposed
Ordinance and determined that it is not a project within the meaning of section 15378 of
the California Environmental Quality Act ("CEQA") Guidelines because it has no
potential for resulting in physical change in the environment either directly or
indirectly; and
WHEREAS, in the event that the actions taken with this proposed Ordinance are
found to be a project under CEQA, it is subject to the CEQA exemption contained in
CEQA Guidelines section 15061(b )(3) because it can be seen with certainty to have no
possibility of a significant effect on the environment; and
\AlHEREAS, the City Council has revie·w·ed arLd considered the not a project and
exemption determination under the California Environmental Quality i\ct prior to
taking any approval actions on this Ordinance and approves such determinations; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Cupertino Municipal Code section 19.08.030C of Chapter 19.08 of Title 19
is amended by adding the following definitions placed into alphabetical order:
"Commercial cannabis activity" shall have the meaning set forth in California Business
and Professions Code section 19300.S(k).
"Cultivation" means any activity involving the planting, growing, harvesting, drying,
curing, grading, or trimming of marijuana.
SECTION 2. Cupertino Municipal Code section 19.08.030I of Chapter 19.08 of Title 19
is amended by adding the following definition placed into alphabetical order:
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"Identification Card" shall have the same meaning as set forth in state law, including
Health and Safety Code Sections 11352.5, 11362.7, and following, or as may be
amended.
SECTION 3. Cupertino Municipal Code section 19.08.030M of Chapter 19.08 of Title 19
is amended by adding the following definitions placed into alphabetical order:
"Marijuana" means all parts of the plant Cannabis, whether growing or not; the seeds
thereof; the resin extracted from any part of the plant; and every compound
manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It
includes marijuana infused in foodstuff, and concentrated cannabis and the separated
resin, whether crude or petrified, obtained from marijuana. It 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 resin extracted therefrom), fiber, oil, or cake, or
the sterilized seeds of the plant that are incapable of germination.
"Medical marijuana" is marijuana used for medical purposes where that medical use is
deemed appropriate and has been recommended by a physician who has determined
that the person's health would benefit from the use of marijuana in the treatment of
acquired immune deficiency syndrome ("AIDS"), anorexia, arthritis, cancer, chronic
pain, glaucoma, migraine, spasticity, or any other serious medical condition for which
marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety
Code § 11362.7.
"Marijuana cultivation facility" means any business, facility, use, establishment,
property, or location where the cultivation of marijuana occurs. A "marijuana
cultivation facility" does not include a /1 qualified patient's" primary residence provided
such cultivation of medical marijuana is for his or her personal use.
"Medical marijuana dispensary" means any business, facility, use, establishment,
property, or location, whether fixed or mobile, where medical marijuana is sold, made
available, delivered, transported, and/or distributed. A "medical marijuana dispensary"
does not include the following uses:
a. A "qualified patient" transporting "medical marijuana" for his or her personal
use;
b. A "primary caregiver" delivering or transporting "medical marijuana" to a
11 qualified patient;"
c. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety
Code;
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d. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health
and Safety Code;
e. A residential care facility for persons with chronic life-threatening illness
licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code;
f. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of
Division 2 of the Health and Safety Code; or
g. A residential hospice, or a home health agency licensed pursuant to Chapter 8 of
Division 2 of the Health and Safety Code.
SECTION 4. Cupertino Municipal Code section 19.08.030P of Chapter 19.08 of Title 19
is amended by adding the following definition placed into alphabetical order:
"Primary caregiver" shall have the same meaning as set forth in state law, including
Health and Safety Code Sections 11352.5, 11362.7, and following, or as may be
amended.
SECTION 5. Cupertino Municipal Code section 19.08.030Q of Chapter 19.08 of Title 19
is amended by adding the following definition placed into alphabetical order:
"Qualified patient" shall have the same meaning as set forth in state law, including
Health and Safety Code Sections 11352.5, 11362.7, and following, or as may be
amended.
SECTION 6. Title 19 of the Cupertino Municipal Code is hereby amended to add
Chapter 19.98 to be numbered, entitled, and to read as follows:
CHAPTER 19.98 Medical Marijuana
19.98.010
19.98.020
19.98.030
Purpose
Prohibitions
Enforcement
19.98.010 Purpose. The purpose and intent of this section is to prohibit medical
marijuana dispensaries, marijuana cultivation facilities, medical marijuana deliveries,
and commercial cannabis activities, as defined in Chapter 19.08, Definitions, within the
city limits. It is recognized that it is a Federal violation under the Controlled Substances
Act to possess or distribute marijuana even if for medical purposes. Additionally, there
is evidence of an increased incidence of crime-related secondary impacts in locations
associated with marijuana cultivation facilities and medical marijuana dispensaries and
in connection with medical marijuana deliveries, which is detrimental to the public's
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health, safety, and welfare. The State of California's licensing and regulation as
contemplated by Assembly Bills 243 and 266 and Senate Bill 643 have not yet taken
effect nor been implemented, and the City Council desires to preserve local control over
these uses and activities. Nothing in this Chapter is intended to circumvent compliance
with state law.
19.98.020 Prohibitions.
(a) The following are prohibited:
(1) Medical marijuana dispensaries in all zones in the city and shall not be
established or operated anywhere in the city.
(2) Marijuana cultivation facilities in all zones in the city and shall not be
established or operated anywhere in the city.
(3) Commercial cannabis activities in all zones in the city and shall not be
established or operated anywhere in the city.
(b) No person shall own, establish, open, operate, conduct, or manage a medical
marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity
in the city, or be the lessor of property where a medical marijuana dispensary,
marijuana cultivation facility, or commercial cannabis activity is located. No person
shall participate as an employee, contractor, agent, volunteer, or in any manner or
capacity in any medical marijuana dispensary, marijuana cultivation facility, or
commercial cannabis activity in the city.
(c) No Permits, grading permit, building permit, building plans, zone change,
business license, certificate of occupancy or other applicable approval will be
accepted, reviewed, approved or issued for the establishment or operation of a
marijuana cultivation facility, medical marijuana dispensary, or commercial
cannabis activity.
(d) Nothing contained in this section shall be deemed to permit or authorize any
use or activity which is otherwise prohibited by any state or federal law.
19.98.030 Enforcement. The city may enforce this section in any manner permitted by
law. The violation of this Chapter shall be and is hereby declared to be a public
nuisance and shall, at the discretion of the city, create a cause of action for injunctive
relief.
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SECTION 7. FINDINGS. The following findings are made under Cupertino
Municipal Code section 19.152.030(0):
(1) The proposed Ordinance conforms with the latest adopted general plan for the
City in that a prohibition against marijuana cultivation facilities, medical marijuana
dispensaries, commercial cannabis activities, and medical marijuana delivery
services does not conflict with any allowable uses in the land use element and does
not conflict with any policies or programs in any other element of the general plan.
(2) The proposed Ordinance will protect the public health, safety, and welfare and
promote the orderly development of the City in that prohibiting marijuana
cultivation facilities, medical marijuana dispensaries, commercial cannabis activities,
and medical marijuana delivery services will protect the City from the adverse
impacts and negative secondary effects connected with these activities.
(3) The proposed Ordinance is consistent with Municipal Code Title 19, which
currently bans marijuana cultivation facilities, medical marijuana dispensaries,
commercial cannabis activities, and medical marijuana delivery services under
principles of permissive zoning.
(4) The proposed Ordinance is not a project within the meaning of section 15378 of
the California Environmental Quality Act ("CEQA") Guidelines because it has no
potential for resulting in physical change in the environment, either directly or
ultimately. In the event that this Ordinance is found to be a project under CEQA, it
is subject to the CEQA exemption contained in CEQA Guidelines section 1506l(b)(3)
because it can be seen with certainty to have no possibility of a significant effect on
the environment.
SECTION 8. SEVERABILITY. If any section, subsection, subdivision, sentence, clause,
phrase, or portion of this Ordinance is, for any reason, held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions of this Ordinance. The City
Council hereby declares that it would have adopted this Ordinance, and each section,
subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the
fact that any one or more sections, subsections, subdivisions, sentences, clauses,
phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 9. The City Clerk shall certify the adoption of this Ordinance and shall give
notice of its adoption as required by law. Pursuant to Government Code Section 36933,
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a summary of this Ordinance may be published and posted in lieu of publication and
posting of the entire text.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino
the 19th day of January, 2016 and ENACTED at a regular meeting of the City Council of
the City of Cupertino the __ of 2016, by the following vote:
Members of the City Council
Ayes:
Noes:
Absent:
Abstain:
ATTEST: APPROVED:
Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino