Mission Viejo Municipal Code Ch. 11 23A - Medical Marijuana Regulations

Footnotes:

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Editor's note— Ord. No. 14-303, § 1, adopted June 16, 2014, repealed Ch. 11.23, §§ 11.23.010—11.23.050, which pertained to prohibition of registered sex offenders from entering city parks and recreation facilities and derived from Ord. No. 12-292, § 1, adopted Jan. 16, 2012. Subsequently, Ord. No. 16-316, § 2, adopted Oct. 25, 2016, deleted the reserved Ch. 11.23 and enacted a new Ch. 11.23A.

The purpose of this chapter is to regulate personal and commercial medical marijuana uses. Nothing in this chapter shall preempt or make inapplicable any provision of state or federal law.

(Ord. No. 16-316, § 2, 10-25-16)

For the purpose of this chapter, the following words and phrases will be construed to have the meanings set forth in this chapter unless it is apparent from the context that a different meaning is intended.

(a) "Authorized grower" means a person 21 years and older who is authorized by, and in compliance with, federal or state law to cultivate marijuana indoors for personal or medical use.

(b) "Commercial marijuana activity" includes the cultivation, delivery, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, distribution, or sale of marijuana and marijuana products.

(c) "Cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana.

(d) "Delivery" means the commercial transfer of marijuana or marijuana products to a customer. "Delivery" also includes the use by a retailer of any technology platform owned and controlled by the retailer, or independently licensed under California law, that enables customers to arrange for or facilitate the commercial transfer by a licensed retailer of marijuana or marijuana products.

(e) "Distribution" means the procurement, sale, and transport of marijuana and marijuana products between entities for commercial use purposes.

(f) "Fully enclosed and secure structure" means a fully-enclosed space within a building that has a complete roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments, is secure against unauthorized entry, is accessible only through one or more lockable doors, and is not visible from a public right-of-way.

(g) "Indoors" means within a fully enclosed and secure structure as that structure is defined in subsection (f) of this section.

(h) "Manufacture" means to compound, blend, extract, infuse, or otherwise make or prepare a marijuana product.

(i) "Marijuana" means as defined in California State Law, and as hereafter: "Marijuana means all parts and derivatives of the plant Cannabis sativa Linnaeus or any other strain or type, whether growing or not, the seeds thereof; the resin whether crude or purified, extract from any of the plant, and any and every compound, manufacture, salt derivative, mixture or preparation of the plant, its seeds or resins that contains tetrahydrocannabinol in any measurable amount. This definition, and this chapter 11.23A prohibitions, do not apply to hemp or hemp products, any substance that conforms to Federal law or any product containing majoritively cannabinol and no measurable amounts of tetrahydrocannabinol."

(j) "Marijuana business" means a marijuana dispensary and/or a business, establishment, facility, operation or person that offers or engages in any commercial marijuana activity.

(k) "Marijuana dispensary" or "dispensary" means any facility or location, including, without limitation, any type of motor vehicle or mobile facility that is not limited to a fixed location, where marijuana or marijuana products are offered, made available and/or distributed for retail sale, including, but not limited to an establishment that provides marijuana delivery services.

(l) "Operation" means any effort to locate, operate, own, lease, supply, allow to be operated, or aid, abet or assist in the operation of a marijuana business.

(m) "Person" includes any individual, firm, co-partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit.

(n) "Private residence" means a house, an apartment unit, a mobile home, or other similar dwelling.

(o) "Sale" includes any transaction whereby, for any consideration, title to marijuana is transferred from one person to another, and includes the delivery of marijuana or marijuana products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same.

(Ord. No. 16-316, § 2, 10-25-16; Ord. No. 19-328, § 5, 5-14-19)

(a) For purposes of this subsection, personal medical use, possession, purchase, transport, or dissemination of marijuana shall be considered unlawful in all areas of the city to the extent it is unlawful under California law.

(b) Outdoor cultivation. A person may not plant, cultivate, harvest, dry, or process marijuana plants outdoors for in any zoning district of the city. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity.

(c) Indoor cultivation.

(1) A person may not plant, cultivate, harvest, dry, or process marijuana plants inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, or inside any other enclosed structure within any zoning district of the City. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity.

(2) To the extent a complete prohibition on indoor cultivation is not permitted under California law, an authorized grower may cultivate marijuana only in a private residence in a residential zone, only indoors, and only for personal use, subject to the following regulations:

a. The marijuana cultivation area shall be located indoors within a residential structure and shall not exceed 50 square feet and not exceed ten feet in height, nor shall it come within 12 inches of the ceiling or any cultivation lighting. Cultivation in an accessory structure on the property of the residence but not physically part of the home is permitted, as long as it is fully enclosed, secure, not visible from a public right-of-way and meeting all requirements in this chapter.

b. Marijuana cultivation lighting shall not exceed 1,200 watts in total for the total cultivation area within the residence.

c. The use of gas products such as but not limited to CO2, butane, methane, or any other flammable or non-flammable gas for marijuana cultivation or processing is prohibited.

d. There shall be no exterior visibility or evidence of marijuana cultivation outside the private residence from the public right-of-way, including but not limited to any marijuana plants, equipment used in the growing and cultivation operation, and any light emanating from cultivation lighting.

e. The authorized grower shall reside full-time in the residence where the marijuana cultivation occurs.

f. The authorized grower shall not participate in marijuana cultivation in any other location within the city.

g. The residence shall include fully functional and usable kitchen, bathroom, and bedroom areas for their intended use by the resident authorized grower, and the premises shall not be used primarily or exclusively for marijuana cultivation.

h. The marijuana cultivation area shall be in compliance with the current building, housing, electrical, and fire codes as adopted by the city, as amended from time to time.

i. The marijuana cultivation area shall not result in a nuisance or adversely affect the health, welfare, or safety of the resident or nearby residents by creating dust, glare, heat, noise, noxious gasses, odors, smoke, traffic, vibration, or other impacts, or be hazardous due to use or storage of materials, processes, products or wastes.

j. No more than six marijuana plants, mature or immature, are permitted for indoor personal cultivation under this chapter.

k. Marijuana in excess of 28.5 grams produced by plants kept for indoor personal cultivation under this chapter must be kept in a locked space on the grounds of the private residence not visible from the public right-of-way.

(Ord. No. 16-316, § 2, 10-25-16)

(a) The establishment or operation of any marijuana business is prohibited anywhere in the city. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for the establishment or operation of any such business or operation.

(b) No person or marijuana business shall engage in any commercial marijuana activity anywhere in the city, including the delivery of any marijuana or marijuana products to any location within the city, regardless of where the marijuana business is located, or engage in any operation for this purpose.

(Ord. No. 16-316, § 2, 10-25-16)

Any violation of the provisions of this chapter is hereby declared a public nuisance and shall be abated pursuant to all available remedies.

(Ord. No. 16-316, § 2, 10-25-16)

Violations of this chapter may be enforced by any applicable law; provided, however, that a person who is in full compliance with the Compassionate Use Act (California Health & Safety Code Section 11362.5) ("CUA") and the Medical Marijuana Program Act (California Health & Safety Code Section 11362.7 et seq.) ("MMPA") shall not be subject to criminal penalties and nothing in this chapter is intended, nor shall it be construed, to conflict with or burden any defense to criminal prosecution under the CUA and the MMPA. Notwithstanding the foregoing and in addition to the specific prohibitions set forth in this code, this chapter is intended to prohibit all activities for which a license from the State of California is required under the Medical Marijuana Regulation and Safety Act ("MMRSA"). Accordingly, the city shall not issue any permit, license, approval or other entitlement for any activity for which a license from the State of California is required under the MMRSA. Notwithstanding the foregoing, nothing in this chapter is intended or shall be interpreted as limiting the city's rights under all applicable laws, rules and regulations, including, but not limited to, its police powers and applicable case law, to regulate the storage, cultivation, selling, giving away, delivery or other distribution or dispensing of marijuana or marijuana-related products.

(Ord. No. 16-316, § 2, 10-25-16)