Montclair Municipal Code Ch. 11.11 Medical Cannabis Dispensaries, Cultivation and Processing, Commercial…

The City Council finds that the purpose and intent of this chapter is to prohibit medical cannabis dispensaries, medical cannabis cultivation, medical cannabis processing, commercial activities regarding non-medical cannabis and cannabis-related products, and to ban the delivery and outdoor commercial and residential cultivation of cannabis in order to protect the health, safety and welfare of the community.

(Ord. No. 17-968, § 3, 9-18-17)

For purposes of this chapter, the following definitions shall apply. For purposes of Chapter 11.11, these definitions shall supersede any other definitions of the same terms elsewhere in this Code.

Attending physician means an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient's medical record the physician's assessment of whether the patient has a serious medical condition and whether the medical use of cannabis is appropriate.

Cannabis or marijuana means all parts of the plant cannabis sativa linnaeus, cannabis indica, and/or cannabis ruderalis, whether growing or not; the seed thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative mixture, or preparation of the plant, its seeds, or resin. "Marijuana" or "cannabis" does not mean "industrial hemp" as defined by Section 81000 of the Food and Agricultural Code or Section 11018.5 of the Health and Safety Code as the same may be amended from time to time.

Cannabis-related products means cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible, ingestible, or topical product containing cannabis or concentrated cannabis and other ingredients.

Commercial cannabis activities includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, distribution, delivery, trade or sale of cannabis and cannabis-related products by any person, entity, commercial or business enterprise, whether for-profit or nonprofit.

Delivery means the transfer of cannabis or cannabis-related products by an individual or entity originating outside of the City of Montclair to any other person or entity located within the City of Montclair.

Fully enclosed and secure structure means a code compliant space within a building, greenhouse or other structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, provides complete visual screening, and which is accessible only through one or more locking doors.

Identification card means a document issued by the California Department of Public Health that identifies a person authorized to engage in the medical use of cannabis and the person's designated primary caregiver, if any.

Medical cannabis cultivation means any activity involving the growing, planting, harvesting, farming, drying, curing, grading, or trimming of medical cannabis. "Medical cannabis cultivation" shall not include cultivation, harvest, drying, or processing of not more than six living cannabis plants and possession of the cannabis produced by the plants.

Medical cannabis dispensary means a facility or location, whether fixed or mobile, which provides, makes available, or distributes cannabis to a primary caregiver or qualified patient, or a person with an identification card issued in accordance with California Health and Safety Code Sections 11362.5, et seq. For purposes of this Chapter, "medical cannabis dispensary" shall not include the following uses: (1) a clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code; (2) a health care facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code; (3) a residential care facility for persons with chronic life-threatening illnesses licensed pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code; (4) a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the California Health and Safety Code; or (5) a residential hospice or home health agency licensed pursuant to Chapter 8 of Division 2 of the California Health and Safety Code.

Medical cannabis processing means any method or activity used to prepare medical cannabis or its by-products for commercial retail and/or wholesale use, including but not limited to: Drying, cleaning, curing, packaging, and extraction of active ingredients to create cannabis-related products and concentrates.

Outdoor cultivation means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis that is not within a fully enclosed and secure structure.

Person with an identification card means an individual who is a qualified patient, who has applied for and received a valid identification card issued pursuant to Section 11362.7 of the Health and Safety Code.

Primary caregiver means the individual, designated by a qualified patient or person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient. A primary caregiver shall be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Section 69022, 7002, 7050 or 7120 of the Family Code.

Qualified patient means a person who is entitled to the protections of Section 11362.5 of the Health and Safety Code, but who does not have an identification card issued by the California Department of Public Health.

(Ord. No. 17-968, § 3, 9-18-17)

A. Commercial cannabis activities are prohibited in the City of Montclair. No use permit, variance, building permit, or any other entitlement, license or permit, whether administrative or discretionary, shall be approved or issued for commercial cannabis activities. It shall be unlawful for any person or entity to own, manage, conduct, operate, or to be employed in or by, or as a landlord or land owner (or as such landlord or land owner's agent, property manager or similar person having control over real property on behalf of its owner) to allow or permit to exist, or be established, conducted, operated, owned or managed on or within real property owned or controlled by such person, any commercial cannabis activity or to participate as a landlord, lessor, land owner, employee, contractor, agent or volunteer, or in any other manner or capacity, in any commercial cannabis activity. Each day a violation of this provision of this chapter is committed, or permitted to continue, shall constitute a separate offense.

B. Exceptions. Nothing in subsection A of this section shall be deemed to make unlawful those activities protected pursuant to California Health and Safety Code Section 11362.1 and Business and Professions Code Section 26033, as follows: (1) possession of not more than 28.5 grams of cannabis not in the form of concentrated cannabis or eight grams of cannabis in the form of concentrated cannabis, including contained in cannabis products, by a person 21 years of age or older or by a person with an identification card, qualified patient or primary caregiver within the meaning of Section 11362.7 of the Health and Safety Code and, excluding the qualified patient, is in possession of a valid identification card issued by the California Department of Public Health pursuant to Section 11362.7, Section 11362.71 and Section 11362.765 of the Health and Safety Code; (2) cultivation of not more than six living cannabis plants and possession of the cannabis produced by the plants within a private residence or a fully and enclosed structure that is accessory to and located on the grounds of the private residence if intended for personal use only; (3) smoking or ingesting cannabis or cannabis-related products on private residential property; (4) the transport of up to 28.5 grams of cannabis or 8 grams of concentrated cannabis or cannabis-related products by a person 21 years of age or older and obtained from a location outside the City of Montclair for transport to a private residence within the City for non-commercial use; and (5) the transport of up to eight ounces of dried cannabis or up to six cannabis plants or 12 immature cannabis plants obtained from a location outside the City of Montclair to a private residence within the City for non-commercial use by a person with an identification card, qualified patient or primary caregiver within the meaning of Section 11362.7 of the Health and Safety Code and, excluding a qualified patient, is in possession of a valid identification card issued by the California Department of Public Health pursuant to Section 11362.7, Section 11362.71 and Section 11362.765 of the Health and Safety Code; provided, however, pursuant to Section 11362.77(a)(b) of the Health and Safety Code, a person with an identification card, qualified patient or primary caregiver may possess an amount of cannabis consistent with the patient's needs if the person with an identification card, qualified patient or primary caregiver has an attending physician's recommendation that the quantity specified herein does not meet the person with an identification card or qualified patient's medical needs.

(Ord. No. 17-968, § 3, 9-18-17)

Outdoor cultivation of cannabis by any person owning, leasing, occupying, or having charge or possession of any parcel within any zoning district in the City is prohibited. It shall be unlawful for any person or entity to own, manage, conduct, or operate, or as a landlord or land owner (or as such landlord or land owner's agent, property manager or similar person having control over real property on behalf of its owner) to allow or permit to exist, or be established, conducted, operated, owned or managed on or within real property owned or controlled by such person, the outdoor cultivation of cannabis or to participate as a landlord, lessor, land owner, employee, contractor, agent or volunteer, or in any other manner or capacity, in the outdoor cultivation of cannabis. Each day a violation of this provision of this chapter is committed, or permitted to continue, shall constitute a separate offense.

(Ord. No. 17-968, § 3, 9-18-17)

Delivery of cannabis and/or cannabis-related products is prohibited within the City of Montclair.

(Ord. No. 17-968, § 3, 9-18-17)

Medical cannabis dispensaries, cooperatives, collectives, establishments or providers are prohibited in the City of Montclair. It shall be unlawful for any person or entity to own, manage, conduct, operate or be employed in or by, or as a landlord or land owner (or as such landlord or land owner's agent, property manager or similar person having control over real property on behalf of its owner) to allow or permit to exist, or to be established, conducted, operated, owned or managed on or within any real property owned or controlled by such person, a medical cannabis dispensary, cooperative, collective, establishment and/or provider or to participate as a landlord, lessor, land owner, employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical cannabis dispensary, cooperative, collective, establishment and/or provider. Each day a violation of this provision of this chapter is committed, or permitted to continue, shall constitute a separate offense.

(Ord. No. 17-968, § 3, 9-18-17)

A. Medical cannabis cultivation or medical cannabis processing are prohibited in the City of Montclair, except where the City is preempted by federal or state law from enacting a prohibition on such activity. No use permit, variance, building permit, or any other entitlement, license, or permit, whether administrative or discretionary, shall be approved or issued for the activities of medical cannabis cultivation or medical cannabis processing, and no person shall otherwise establish or conduct such activities in the City, except where the City is preempted by federal or state law from enacting a prohibition on any such activity for which the use permit, variance, building permit, or any other entitlement, license or permit is sought.

B. Exceptions. Nothing in subsection A of this section shall be deemed to prohibit or make unlawful those activities protected pursuant to California Health and Safety Code Section 11362.77, as follows: A qualified patient or primary caregiver [as those terms are defined in California Health and Safety Code Section 11362.7] (1) may possess no more than eight ounces of dried cannabis per qualified patient; (2) may maintain no more than six mature or 12 immature cannabis plants per qualified patient; and (3) may possess an amount of cannabis consistent with the patient's needs if the qualified patient or primary caregiver has a physician's recommendation that the limitations set forth in California Health & Safety Code Section 11362.77(a) does not meet the qualified patient's medical needs.

(Ord. No. 17-968, § 3, 9-18-17)

The establishment, maintenance or operation of a medical cannabis dispensary, the cultivation or processing of medical cannabis, any commercial cannabis activity, the delivery of cannabis, and outdoor cultivation of cannabis in violation of this chapter within the City is hereby declared to be a public nuisance and may be abated as such by all available means.

(Ord. No. 17-968, § 3, 9-18-17)

Nothing contained in this chapter shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any state or federal law.

(Ord. No. 17-968, § 3, 9-18-17)

Nothing in this chapter shall limit or preclude the enforcement of other applicable laws.

(Ord. No. 17-968, § 3, 9-18-17)