East Palo Alto Municipal Code Ch. 9.32 Cannabis Activities

Footnotes:

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Editor's note— Ord. No. 417, § 1, adopted Oct. 16, 2018, repealed the former Ch. 9.32, §§ 9.32.010—9.32.060, and enacted a new Ch. 9.32 as set out herein. The former Ch. 9.32 was entitled "Medical Marijuana," and derived from: Ord. No. 351, § 1, adopted July 19, 2011; and Ord. No. 395, § 1, adopted Feb. 16, 2016.

The purpose of this chapter is to prohibit the establishment, operation, and location of commercial cannabis activity within the City of East Palo Alto through the exercise of local land use controls while allowing personal use and personal indoor cultivation of cannabis without violating the city's zoning ordinance if such use or cultivation is otherwise consistent with state law and this chapter.

(Ord. No. 417, § 1, 10-16-2018)

For the purposes of this chapter, the following definitions shall apply:

A. "Cannabis" shall have the meaning set forth in Cal. Health and Safety Code Section 11018, as may be amended. The terms "cannabis" and "marijuana" shall have the same meaning and the terms may be used interchangeably.

B. "Cannabis activities" means the personal or commercial use, possession, cultivation, manufacture, distribution, processing, storage, testing, labeling, transportation, delivery, sale, gifting, transfer, or exchange of cannabis, as well as any like activities relating to growing, processing, obtaining, or using cannabis.

C. "Cannabis cultivation" means the growing, planting, harvesting, drying, curing, grading, trimming or processing of cannabis or any part thereof.

D. "Cannabis delivery" means the commercial transfer of cannabis or cannabis products to a customer for medicinal or non-medicinal use. "Delivery" also includes the use by a retailer of any technology platform.

E. "Medical cannabis" means cannabis intended for use pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at Section 11362.5 of the Health and Safety Code, by a medicinal cannabis patient in California who possesses a physician's recommendation.

F. "Medical cannabis distribution facility" is any facility or location, whether fixed or mobile, where a primary caregiver makes available, sells, transmits, gives or otherwise provides cannabis to two or more persons with identification cards or qualified patients, as defined in Cal. Health and Safety Code Section 11362.5 et seq., or any facility where qualified patients, persons with identification cards and primary caregivers meet or congregate collectively and cooperatively to cultivate or distribute cannabis for medical purposes under the authority of Cal. Health and Safety Code Section 11362.5 et seq. "Medical cannabis distribution facility" shall not include the following uses, so long as such uses comply with the Municipal Code, Zoning Code, Cal. Health and Safety Code Section 11362.5 et seq., and other applicable law:

1. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code.

2. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code.

3. 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.

4. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code.

5. A hospice or a home health agency, licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code.

G. "Mobile cannabis dispensary" means any business, office, store, facility, location, retail "storefront," wholesale distributor, or component of any establishment, cooperative, collective, club or entity of that nature that transports or delivers (as defined in Business and Professions Code § 193500(m), or any successor statute thereto), or arranges the transportation or delivery of cannabis and/or medical cannabis for any purpose.

H. "Primary caregiver" shall have the meaning set forth in Cal. Health and Safety Code Section 11362.7, as may be amended.

I. "Qualified patient" shall have the meaning set forth in Cal. Health and Safety Code Section 11362.7, as may be amended.

J. "Technical codes" shall refer to the California Building Code, California Residential Code, California Plumbing Code, California Mechanical Code, California Electrical Code, California Historical Code, California Building Energy Efficiency Standards, California Green Building Standards Code, and California Existing Building Code, as adopted by the City of East Palo Alto.

(Ord. No. 417, § 1, 10-16-2018)

A. Prohibition: Cannabis activities, as defined in Section 9.32.020.B, are prohibited in all zones and no use permit of any type shall be issued therefor including, but not limited to, the following specific activities:

1. Cannabis activities for any commercial purpose, including any cannabis activity requiring a license under Business and Professions Code Division 10, as may be amended;

2. Medical cannabis distribution facilities as defined in Section 9.32.020.F;

3. Cannabis delivery as defined in Section 9.32.020.D;

4. Mobile cannabis dispensaries as defined in Section 9.32.020.G; or

5. Outdoor cultivation of cannabis.

B. Medical cannabis delivery to qualified patients shall not be deemed a misdemeanor, infraction, or crime of any kind, but shall be subject to civil enforcement remedies available by law, at the discretion of the city.

(Ord. No. 417, § 1, 10-16-2018)

Notwithstanding the ban stated in Section 9.32.030, the following cannabis activities are not subject to the ban:

A. Transportation. Transportation of cannabis through the City to the limited extent authorized by Cal. Business and Professions Code Section 26080(b).

B. Medical Cannabis. Possession, cultivation or use of medical cannabis to the limited extent that such possession, cultivation or use is allowed under state law pursuant to Cal. Health and Safety Code Sections 11362.5, 11362.7, 11362.77, and 11362.765, as may be amended.

C. Lawful Personal Conduct Under State Law. Personal conduct authorized under Cal. Health and Safety Code Section 11362.1 to the limited extent so authorized.

D. Personal Cultivation. Personal cultivation to the limited extent authorized under Cal. Health and Safety Code Sections 11362.1 and 11362.2, and in accordance with the regulations set forth in Section 9.32.050.

(Ord. No. 417, § 1, 10-16-2018)

A. Personal Cultivator. An individual who may cultivate cannabis for personal use pursuant to state law may do so within city limits subject to the following limitations:

1. Personal Cultivation for Adult Use: Not more than six living plants may be planted, cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, at one time.

2. Personal Cultivation for Medical Use:

a. Qualified patients may cultivate medical cannabis for his or her personal medicinal use.

b. Primary caregivers may cultivate medical cannabis for the personal medicinal purposes of no more than five specified qualified patients for whom he or she is the primary caregiver, in accordance with state law, including Cal. Health and Safety Code Sections 11362.7 and 11362.765, as may be amended.

c. In accordance with Cal. Health and Safety Code Section 11362.77, a qualified patient or primary caregiver may cultivate no more than eight ounces of dried cannabis per qualified patient. In addition, a qualified patient or primary caregiver may also cultivate no more than six mature or twelve (12) immature cannabis plants per qualified patient. If a qualified patient or primary caregiver has a physician's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of cannabis consistent with the patient's needs.

3. Personal cultivation does not include, and this section shall not authorize, any cultivation conducted as part of a business or commercial activity, including cultivation for compensation or retail or wholesale sales of cannabis.

B. Indoor Cultivation. The personal cultivator shall be allowed to cultivate cannabis only within his/her personal residence or in a garage or other fully enclosed and locked accessory structure located entirely on property owned or legally possessed by him or her.

C. Outdoor Cultivation. Outdoor cultivation is expressly prohibited within city limits. No person, including a qualified patient or primary caregiver, shall cultivate any amount of cannabis outdoors in the city, for any purpose, whether personal or commercial.

D. Residence. The personal cultivator shall reside at the property wherein the cannabis cultivation occurs.

E. Cultivation Elsewhere in the City. The personal cultivator shall not participate in cultivation in any other location within the city.

F. Cultivation Area. In any residence, the cannabis cultivation area shall not exceed thirty-two (32) square feet measured by the canopy, nor exceed ten (10) linear feet in height. This limit applies regardless of the number of individuals residing in the residence. The cultivation area shall be a single designated area.

G. Building Code Requirements. Any alterations or additions to the residence, including garages and accessory buildings, shall be subject to applicable technical codes, in addition to all applicable zoning codes, including lot coverage, setback, height, and parking requirements.

H. Lighting. Lighting for cannabis cultivation shall not exceed a total of one thousand (1,000) watts, or otherwise pose a fire or safety hazard.

I. Gas Products. The use of gas products, including, but not limited to, carbon dioxide, butane or propane for cannabis cultivation or processing is prohibited.

J. Evidence of Cultivation. There shall be no evidence of cannabis cultivation occurring on-site from the exterior of the building where cultivation occurs.

K. Incidental Use. The primary use of the property where cannabis cultivation occurs shall be a residence. The residence shall maintain kitchen, bathrooms, and primary bedrooms for their intended use, and cannabis cultivation shall be limited to an incidental use of the residence.

L. Ventilation. The cannabis cultivation area shall include a natural or mechanical means of ventilation to prevent mold and moisture, and otherwise protect the health and safety of persons residing in the residence and the public. The ventilation system shall be maintained in good working order at all times.

M. Use and Storage of Chemicals. For the protection of local groundwater resources and indoor air quality, and to avoid disposal of harmful substances into sewers or septic systems, no chemical shall be used for cannabis cultivation that contains any substance on the list prepared pursuant to Cal. Health and Safety Code § 25249.8; provided, that any chemical specifically approved by the California Department of Pesticide Regulation for indoor use on cannabis may be used in amounts prescribed by the department. No chemical used for cannabis cultivation shall be stored in a manner visible from neighboring residences or to individuals located outside the property line or in the public right-of-way.

N. Nuisance. The cannabis cultivation area shall not adversely affect the health or safety of nearby residents by creating unreasonable dust, glare, heat, noise, noxious gases, odors, traffic, vibrations, or similar impacts. Nor shall cannabis cultivation be hazardous due to the use or storage of materials, processes, products, or wastes, or from any actions incidental or related to the cultivation.

O. Property Owner Authorization. For rental property, the lessee shall notify the property owner or property manager or management company of the cultivation, and no cannabis cultivation is permitted that would violate any lease term. Nothing in this section is intended, nor shall it be construed, to preclude any landlord from limiting or prohibiting personal cultivation or cannabis by tenants.

P. Additional Requirements for Garages and Accessory Buildings. Personal use cultivation that occurs in any garage or other accessory building ("the structure") shall comply with the following additional requirements:

1. Security. The structure shall be secure, locked, and fully enclosed, with a ceiling, roof or top, and shall be entirely opaque from all sides, including the top.

2. Alarm. The structure shall include a fully permitted burglar alarm monitored by an alarm company or private security company.

3. Firewall. The wall between the garage and the residence shall comply with the firewall assembly requirements provided in California Residential Code Section R302.5.1, as may be amended. Existing and new accessory buildings used for personal cultivation shall comply with the exterior wall fire resistive requirements provided in California Residential Code Table R302.1(2), as may be amended.

4. Parking Spaces. Personal cultivation that occurs in any garage shall not impede the use of any off-street parking spaces for their intended purpose.

Q. Registration. The city manager shall establish procedures for registering the cultivation of cannabis within the city limits, and shall charge a fee in an amount set by resolution of the city council. The registration procedures shall be posted on the city's official website once established, and thereafter no person shall commence or continue to cultivate cannabis within the city limits without first registering the site of the cultivation pursuant to registration procedures.

R. Cultivation in excess of what is permitted above under Section 9.32.050.A is prohibited in all zones, and any violation of the ban shall be subject to administrative, civil, and criminal enforcement remedies available by law, at the discretion of the city. Notwithstanding the foregoing, any medical cannabis cultivation in excess of what is permitted above under Subsection 9.32.050.A.2 shall be a public nuisance, but shall not otherwise be deemed a misdemeanor, infraction, or crime of any kind to the limited extent that such cultivation is not subject to criminal prosecution under state law pursuant to Cal. Health and Safety Code § 11362.5.

(Ord. No. 417, § 1, 10-16-2018)

A. Any person found to be in violation of any provision of this chapter shall be subject to the enforcement remedies set forth in Title 1, at the discretion of the city, including, but not limited to, prosecution as a misdemeanor violation punishable as set forth in Chapter 1.12.

B. Each violation of this chapter and each day of violation of this chapter shall be considered as separate and distinct violations thereof and the imposition of a penalty shall be as set forth in Subsection A. of this section for each and every separate violation and each and every day of violation.

(Ord. No. 417, § 1, 10-16-2018)

Cannabis activities prohibited by the chapter are declared to be a public nuisance. The city may enforce this chapter and its regulations in any manner permitted by law, and is entitled to recover all costs, including attorneys fees, related to enforcement. Any use or condition caused or permitted to exist in violation of any of the provisions of this chapter may be abated by the city pursuant to the procedures set forth in Chapter 8.08, or be the subject of any available legal remedies including, but not limited to, injunctive relief.

(Ord. No. 417, § 1, 10-16-2018)

If any section, subsection, paragraph, sentence, clause, or phrase in this chapter or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by a court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter or any part thereof. The city council hereby declares that it would have passed each section, subsection, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one or more sections, subsections, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective.

(Ord. No. 417, § 1, 10-16-2018)