Carlsbad Municipal Code Ch. 8.90 Cannabis

This chapter is declarative of existing law. The Carlsbad Municipal Code, Title 21 (Zoning), only allows land uses permitted by the code. No provision of the Carlsbad Municipal Code allows any cannabis operation or land use of any kind within any zone, with the exception of medicinal cannabis deliveries pursuant to California Code of Regulations, Title 16, Division 42, Section 5416, and licensed medicinal cannabis delivery service businesses pursuant to Chapter 8.95 of this code. The purpose and intent of this chapter is to clarify the intent of the Carlsbad Municipal Code to prevent the cultivation, delivery, distribution, and sale of cannabis within Carlsbad city limits to the fullest extent of the law. Commercial cannabis activity has judicially recognized adverse secondary effects on the community, including, but not limited to, increases in crime in the vicinity of or as a result of the commercial cannabis activity; increases of fraud in obtaining or using state-issued identification cards and licenses; interference with residential property owners' enjoyment of their properties when such properties are located in the vicinity of commercial cannabis activity as a result of increases in crime, litter, noise, and vandalism; and the deterioration of neighborhoods. Prohibition of commercial cannabis activity is necessary to prevent these adverse secondary effects and the blighting or degradation of the neighborhoods in the vicinity of commercial cannabis activity, while at the same time protecting the rights of those individuals who desire to use cannabis within a private residence as authorized under the Adult Use of Marijuana Act.

Further, it is the intent of this chapter to limit the demands on police and other city resources and allow time for the state to establish and implement its regulatory and licensing programs under the Medical Cannabis Regulation and Safety Act of 2015, the Adult Use of Marijuana Act of 2016, and the Medicinal and Adult-Use Cannabis Regulation and Safety Act of 2017.

This chapter is not intended to conflict with federal or state law. The city council intends that this chapter be interpreted to be compatible with federal and state law. To the extent that this chapter may be deemed to conflict with any provision of state law, the city council has determined that the subject of the conflict is a municipal affair.

(Ord. CS-323 § 2, 2017; Ord. CS-460, 10/24/2023)

For the purposes of this chapter and Chapter 8.95 of this code, the following definitions apply:

"Applicant"

means a person or entity who has submitted an application for a medicinal cannabis delivery service license under Chapter 8.95 of this code.

"Business owner" or "business ownership"

means any of the following: (1) A person with an aggregate ownership interest of 20% or more in the medicinal cannabis delivery service business, unless the interest is solely a security, lien, or encumbrance; (2) the chief executive officer of a nonprofit or other entity applying for, or holding, such license; (3) a member of the board of directors of a nonprofit applying for, or holding, such license; or (4) an individual participating in the direction, control, or management of the person applying for, or holding, such license.

"Cannabis"

means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant, whether crude or purified; every compound, manufacture, salt, derivative, mixture, concentrate, or preparation of the plant, its seeds, or resin; and edible or topical products containing any of the above. "Cannabis" does not include industrial hemp, as defined in California Health and Safety Code Section 11018.5.

"Cannabis products"

has the same meaning as in Section 26001 of the California Business and Professions Code.

"Caregiver" or "primary caregiver"

has the same meaning as that term is defined in Section 11362.7 of the California Health and Safety Code.

"Commercial cannabis activity"

means any cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, distribution, delivery, or sale of cannabis requiring a license from the state under Division 10 of the California Business and Professions Code, whether or not carried on for profit and including medical cannabis cooperatives and collectives, except as approved by the U.S. Drug Enforcement Administration or the U.S. Food and Drug Administration.

"Cultivation"

means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.

"Delivery"

means the transfer of cannabis, including the use of any technology platform to arrange for or facilitate the transfer of cannabis by any business, cooperative, or collective, whether or not carried on for profit, to or from any location within the City of Carlsbad.

"Delivery personnel"

means persons employed by a state and locally licensed cannabis business who deliver cannabis and cannabis products from the business premises to customers, or in the case of medicinal cannabis to qualified patients or caregivers, at a physical address location.

"Distribution"

means the procurement, sale, and transport of cannabis or cannabis products between entities licensed pursuant to the MAUCRSA and any subsequent State of California legislation regarding the same.

"Indoors"

means a code compliant space within a building, greenhouse, or other structure which is fully enclosed, with a complete roof enclosure supported by connecting walls extending from the ground to the roof that is secured against unauthorized entry and accessible only through one or more locking doors.

"MAUCRSA"

means the Medical and Adult Use Cannabis Regulation and Safety Act or Senate Bill 94, signed into state law in 2017.

"Medicinal cannabis activity"

means cultivation, manufacture, processing, laboratory testing, transporting, delivery, distribution, or sale of medicinal cannabis or a medicinal cannabis product, within the meaning of California Business and Professions Code Section 19300 et seq.

"Medicinal cannabis delivery service business"

means a business or operation, whether for profit or nonprofit, whose premises are closed to the public and which sells medicinal cannabis and/or medicinal cannabis products exclusively by delivery, which requires a state license (Type 9-Non-storefront Retailer) under California Business and Professions Code Section 26000 et seq. and which requires a medicinal cannabis delivery service license issued by the City of Carlsbad to legally operate. This definition does not include any storefront component whereby customers purchase or pick up medicinal cannabis or medicinal cannabis products at the physical premises of a retail establishment.

"Medicinal cannabis delivery service license"

means a City of Carlsbad regulatory license issued pursuant to Chapter 8.95 of this code to a medicinal cannabis delivery service business.

"Medicinal cannabis delivery service vehicle"

means a vehicle used by a medicinal cannabis delivery service business to deliver medicinal cannabis or medicinal cannabis products. A medicinal cannabis delivery service vehicle must comply with all requirements of Chapter 8.95 of this code and California Code of Regulations, Title 4, Division 19, to legally operate.

"Medicinal cannabis" or "medicinal cannabis product"

means medicinal cannabis or medicinal cannabis products, as those terms are defined in Section 26001 of the California Business and Professions Code. Medicinal cannabis does not include industrial hemp as defined by Section 81000 of the California Food and Agricultural Code or Section 11018.5 of the California Health and Safety Code. This definition does not include cannabis accessories, branded merchandise of the licensee, or promotional materials, which are prohibited from delivery within the City of Carlsbad by medicinal cannabis delivery service businesses.

"Person with an identification card"

means a qualified patient, caregiver, or primary caregiver who possesses a valid identification card as described in California Health and Safety Code Section 11362.7.

"Physical address location"

means a real property structure from where a medicinal cannabis delivery service business conducts its operations. This location may be one of several business locations and does not need to be the primary business location or headquarters.

"Private residence"

means a house, an apartment unit, a mobile home, or other similar dwelling unit.

"Property owner" or "property ownership"

means the individual or entity who is the record owner of the property or premises where a medicinal cannabis delivery service business may be located or is proposed to be located.

"Public park"

means an area created, established, designated, or maintained by a special district, county, the state, or the federal government for public play, recreation, enjoyment, or for the protection of natural resources and features at the site.

"Qualified patient"

has the same meaning as that term is defined in Section 11362.7 of the California Health and Safety Code, a person who possesses a physician's recommendation that complies with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2 of the California Business and Professions Code, or a primary caregiver for a qualified patient.

"State license"

means a permit or license issued by the State of California, or one of its departments or divisions, under MAUCRSA to engage in medicinal cannabis activity.

"Transport"

means the transfer of medicinal cannabis or medicinal cannabis products from the licensed business location of one licensee to the licensed business location of another licensee, for the purpose of conducting medicinal cannabis activity authorized by the MAUCRSA.

"Transporter"

means a person authorized to transport medicinal cannabis or medicinal cannabis products in amounts authorized by the State of California, or by one of its departments or divisions under the MAUCRSA.

"Youth center"

has the same meaning as that term is defined in California Health and Safety Code Section 11353.1.

(Ord. CS-323 § 2, 2017; Ord. CS-460, 10/24/2023)

A. Commercial cannabis activity is prohibited within the City of Carlsbad. No person shall engage in any commercial cannabis activity. No permit, license, or other authorization shall be issued for any commercial cannabis activity. This prohibition does not apply to licensed medicinal cannabis delivery service businesses pursuant to Chapter 8.95 of this code, cannabis delivery businesses pursuant to California Code of Regulations, Title 16, Division 42, Section 5416, and the carriage of cannabis on public roads in the City of Carlsbad to the limited extent required by Sections 26080(b) and 26090(e) of the California Business and Professions Code.

B. Cultivation of cannabis is prohibited, except indoors at a private residence as authorized by Section 11362.2(a) of the California Health and Safety Code. Cannabis grown indoors shall be completely screened from view from public places and neighboring properties. Nothing in this chapter is intended to, nor shall it be construed to, preclude any owner of real property from limiting or prohibiting cannabis cultivation by its tenants.

C. No person shall smoke or ingest cannabis in any public place.

(Ord. CS-323 § 2, 2017; Ord. CS-460, 10/24/2023)

Any violation of this chapter is hereby declared a public nuisance and, as such, may be abated or enjoined from further operation within the city of Carlsbad.

(Ord. CS-323 § 2, 2017)

A. Any person who violates this chapter shall be guilty of a misdemeanor except: where Division 10, Chapter 6, Article 2 of California Health and Safety Code limits punishment to an infraction; or where the limited exemptions from criminal prosecution under Section 11362.71 or 11362.775 of the California Health and Safety Code, related to qualified patients and designated primary caregivers, apply. Under Section 1.08.010(C) of this code, each and every day during which a violation occurs shall be a separate offense.

B. The city may impose administrative penalties under Chapter 1.10 of this code for violations of this chapter.

(Ord. CS-323 § 2, 2017)

If any section, subsection, sentence, or clause of this chapter is held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter.

(Ord. CS-323 § 2, 2017)