Mendota Municipal Code Ch. 8.36 Personal Cannabis Use and Cultivation

Footnotes:

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Editor's note— Ord. No. 17-05, § 1, adopted April 25, 2017, amended Ch. 8.36 in its entirety to read as herein set out. Former Ch. 8.36, §§ 8.36.010—8.36.070 pertained to similar subject matter and derived from Ord. No. 16-05, § 1, adopted June 14, 2016. See Code Comparative Table and Disposition List for a complete derivation. Subsequently, Ord. No. 19-06, § 3, adopted June 11, 2019, changed the title of ch. 8.36 from "Medical Marijuana" to read as herein set out.

It is the purpose and intent of this Chapter 8.36, pursuant to Section 25123(d) of the Government Code to regulate the cultivation, processing, extraction, manufacturing, testing, distribution, transportation, sale, and consumption of cannabis to preserve the public peace, health, safety and general welfare of the citizens of the city of Mendota.

(Ord. No. 17-05, § 1, 4-25-2017; Ord. No. 19-06, § 3, 6-11-2019)

This chapter is not intended to, nor shall it be construed or given effect in a manner that causes it to apply to, any activity that is regulated by federal or state law to the extent that application of this chapter would conflict with such law or would unduly interfere with the achievement of federal or state regulatory purposes. It is the intention of the city council that this chapter shall be interpreted to be compatible and consistent with federal and state enactments and in furtherance of the purposes which those enactments express. It is the intention that the provisions of this chapter will supersede any other provisions of this Mendota Municipal Code found to be in conflict.

(Ord. No. 17-05, § 1, 4-25-2017)

Notwithstanding any other provision in the Mendota Municipal Code, for purposes of this Chapter 8.36, the following terms shall have the following meanings:

"Act" means the Adult Use of Marijuana Act ("AUMA") or Proposition 64, and any amendments thereto. The terms "Act," "Adult Use of Marijuana Act," "AUMA," and "Proposition 64" may be used interchangeably, but shall have the same meaning.

"Cannabis" or "marijuana" shall have the meaning set forth in California Business and Professions Code Section 19300.5(f). "Cannabis" and "marijuana" may be used interchangeably, but shall have the same meaning.

"Collective or cooperative cultivation" means the association within California of qualified patients, persons with valid identification cards, and the designated primary caregivers of patients and persons with identification cards to cultivate medical marijuana.

"Commercial cannabis operation" means any commercial cannabis activity as set forth in California Business and Professions Code Section 19300.5(k) and allowed under the Act, and all uses permitted under any subsequently enacted state law pertaining to the same or similar uses for recreational cannabis.

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

"Medical marijuana" or "medical cannabis" means "medical cannabis" as defined in Section 19300.5, subdivision (af) of the California Business and Professions Code.

"Person" means any individual, partnership of any kind, corporation, limited liability company, association, joint venture, or other organization or entity, however formed.

"Recreational cannabis" or "recreational cannabis use" means all uses of cannabis not included within the definition of "medical marijuana use."

(Ord. No. 17-05, § 1, 4-25-2017; Ord. No. 19-06, § 3, 6-11-2019)

No person shall smoke, ingest, or otherwise consume either recreational or medical cannabis in the city of Mendota unless such smoking, ingesting or consumption occurs entirely within that person's principal place of residence or on the premises of that person's principal place of residence but out of public view. "Out of public view" shall mean out of view from public rights-of-way where members of the public are lawfully entitled to be. The phrase "inside a private residence" shall mean inside habitable areas and shall include garages, whether attached or detached, and other accessory buildings.

Medical cannabis may also be consumed within a clinic, health care facility, residential care facility, or residential hospice licensed pursuant to applicable provisions of the California Health and Safety Code.

All consumption shall be done in a manner so as to not cause a nuisance to nearby residents with noxious odors or other adverse health and safety impacts.

(Ord. No. 17-05, § 1, 4-25-2017; Ord. No. 19-06, § 3, 6-11-2019)

Personal Use Cultivation. An individual person shall be allowed to cultivate medical or recreational cannabis to the extent permitted by applicable state law, within his or her private residence, in an attached garage, or in an accessory building if the property is detached single-family residential. Cultivation for personal use shall be subject to the following requirements:

1. Area. The cannabis cultivation area shall not exceed thirty-two (32) square feet measured by the canopy and not exceed ten (10) feet in height per residence. This limit applies regardless of the number of qualified patients or persons residing in the residence. The cultivation area shall be a single designated area.

2. Lighting. Cannabis cultivation lighting shall not exceed a total of one thousand two hundred (1,200) watts.

3. Building Code Requirements. Any alterations or additions to the residence, including garages and accessory buildings, shall be subject to applicable building and fire codes, including plumbing and electrical, and all applicable zoning codes, including lot coverage, setback, height requirements, and parking requirements.

4. Gas Products. The use of gas products (CO2, butane, etc.) for cannabis cultivation or processing is prohibited.

5. Evidence of Cultivation. From a public right-of-way or other public space there shall be no exterior evidence of cannabis cultivation occurring on the site.

6. Residence. The person shall reside in the residence where the cannabis cultivation occurs.

7. Cultivation Elsewhere in City. The person shall not participate in cannabis cultivation in any other location within the city of Mendota.

8. Incidental Use. The residence shall maintain kitchen, bathrooms, and primary bedrooms for their intended use and not be used primarily for marijuana cultivation.

9. Ventilation. The cannabis cultivation area shall include a ventilation and filtration system designed to ensure that odors from the cultivation are not detectable beyond the residence, or property line for detached single-family residential, and designed to prevent mold and moisture and otherwise protect the health and safety of persons residing in the residence and cultivating the cannabis. This shall include, at a minimum, a system meeting the requirements of the current, adopted edition of the California Building Code Section 1203.4, Natural Ventilation, or 402.3, Mechanical Ventilation (or its equivalent(s)).

10. Storage of Chemicals. Any chemicals used for cannabis cultivation shall be stored outside of the habitable areas of the residence and outside of public view from neighboring properties and public rights-of-way.

11. Nuisance. The cannabis cultivation area shall: not adversely affect the health or safety of the nearby residents by creating dust, glare, heat, noise, noxious gases, odor, smoke, traffic, vibration, or other impacts; and not be hazardous due to the use or storage of materials, processes, products or wastes, or from other actions related to the cultivation.

12. Property Owner Authorization. For rental property, the lessee shall obtain written authorization from the property owner or property management company to cultivate cannabis.

13. Notification. The owner and any lessee of the residence upon which cultivation will occur shall inform the police department of the intent to cultivate cannabis and pick up a handout setting forth the owner and lessee responsibilities under this section. This notification shall be provided prior to the commencement of the cultivation except that, for existing cultivation, the information shall be provided within ten (10) days of the effective date of this chapter. The police department may direct the owner and lessee to the department of planning and development services for more information about building code and permit requirements that may be applicable if alterations or additions to the residence are contemplated. The police department and department of planning and development services shall keep patient information confidential to the extent required by law.

14. Additional Requirements for Garages and Accessory Buildings. The following additional requirements shall apply for personal use cultivation that occurs in a garage or accessory building: the garage or accessory building shall be secure, locked, and fully enclosed, with a ceiling, roof or top, and entirely opaque. The garage or building shall include a burglar alarm monitored by an alarm company or private security company. The garage or building, including all walls, doors, and the roof, shall be constructed with a firewall assembly of green board meeting the minimum building code requirements for residential structures and include material strong enough to prevent entry except through an open door.

(Ord. No. 17-05, § 1, 4-25-2017; Ord. No. 17-13, § 4, 9-12-2017; Ord. No. 19-06, § 3, 6-11-2019)

Editor's note— Ord. No. 19-06, § 3, adopted June 11, 2019, changed the title of § 8.36.050 from "Cultivation of marijuana" to read as herein set out.

Each and every violation of this chapter shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by Title 1, Chapter 1.20 of this code. Additionally, as a nuisance per se, any violation of this chapter shall be subject to injunctive relief, payment to the city any and all monies unlawfully obtained, costs of abatement, costs of investigation, attorney fees, civil penalties as set by the city council by resolution and any other relief or remedy available at law or equity. The city may also pursue any and all remedies and actions available and applicable under local and state laws for any violations of this chapter. The Mendota Police Department, with administrative assistance from the city manager's office, shall have primary responsibility for enforcement of the provisions of this chapter; however, nothing herein shall limit the ability of the city's designated code enforcement officer to enforce the provisions of this chapter as may be necessary from time-to-time.

Should a court of competent jurisdiction subsequently determine that the criminal penalty provision renders this chapter unlawful, the city intends that such penalties be severable from the remaining penalty provisions and the city will only pursue non-criminal remedies for violations of this chapter.

Nothing in this chapter shall be construed as imposing on the enforcing officer or the city of Mendota any duty to issue any notice to abate, nor to abate, nor to take any other action with regard to any violation of this chapter, and neither the enforcing officer nor the city of Mendota shall be held liable for failure to issue an order to abate, nor for failure to abate, nor for failure to take any other action with regard to any violation of this chapter.

(Ord. No. 17-05, § 1, 4-25-2017; Ord. No. 19-06, § 3, 6-11-2019)

Editor's note— Ord. No. 19-06, § 3, adopted June 11, 2019, repealed former § 8.36.060 and renumbered § 8.36.070 as § 8.36.060. Former § 8.36.060 pertained to marijuana dispensaries, and derived from Ord. No. 17-05, § 1, adopted April 25, 2017; and Ord. No. 17-13, § 5, adopted Sept. 12, 2017.

Judicial review of a decision made under this chapter may be had by filing a petition for a writ of mandate with the superior court in accordance with the provisions of the Section 1094.5 of the California Code of Civil Procedure. Any such petition shall be filed within ninety (90) days after the day the decision becomes final as provided in Section 1094.6 of the California Code of Civil Procedure, which shall be applicable for such actions.

(Ord. No. 17-05, § 1, 4-25-2017; Ord. No. 19-06, § 3, 6-11-2019)

Editor's note— Ord. No. 19-06, § 3, adopted June 11, 2019, renumbered § 8.36.080 as § 8.36.070.

If any part of this chapter is for any reason held to be invalid, unlawful, or unconstitutional, such invalidity, unlawfulness or unconstitutionality shall not affect the validity, lawfulness, or constitutionality of any other part of this chapter.

(Ord. No. 17-05, § 1, 4-25-2017; Ord. No. 19-06, § 3, 6-11-2019)

Editor's note— Ord. No. 19-06, § 3, adopted June 11, 2019, renumbered § 8.36.090 as § 8.36.080.