San Bernardino Municipal Code Ch. 8.99 Personal Cultivation of Cannabis

The purpose of this chapter is to impose reasonable regulatory restrictions on the personal cultivation of cannabis pursuant to state law. This chapter is not intended to interfere with a patient’s right to use medicinal cannabis pursuant to state law, as may be amended, nor does it criminalize cannabis possession or cultivation otherwise authorized by state law. This chapter is not intended to give any person or entity independent legal authority to engage in commercial cannabis activity, as it is intended simply to impose regulatory restrictions regarding personal cultivation of cannabis in the city pursuant to this code and state law.

(Ord. MC-1466, passed 3-7-2018)

Nothing in this title shall be construed to allow any conduct or activity relating to the cultivation, distribution, dispensing, sale or consumption of cannabis that is otherwise illegal under local or state law. Nor shall it be construed to exempt any activity related to the cultivation of cannabis from any applicable electrical, plumbing, land use or other building or land use standards or permitting requirements. No provision of this chapter shall be deemed a defense or immunity to any action brought against any person by the County District Attorney’s office, the Attorney General of the state or the United States.

(Ord. MC-1466, passed 3-7-2018)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CITY. The City of San Bernardino, California.

CANNABIS. All parts of the plant Cannabis sativa Linnaeus, Cannabis indica or Cannabis ruderalis, or any other strain or varietal of the genus Cannabis that may exist or be discovered, or developed, that has psychoactive or medical properties, whether growing or not, including, but not limited to, the seeds 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. CANNABIS also means the separated resin, whether crude or purified, obtained from CANNABIS. CANNABIS also means cannabis, as defined by Cal. Health and Safety Code, § 11018 and Cal. Business and Professions Code, § 26001(f), as both may be amended from time to time. Any reference to CANNABIS or CANNABIS PRODUCTS shall include medical and non-medical cannabis and medical and non-medical cannabis products unless otherwise specified. CANNABIS or CANNABIS PRODUCT does not mean industrial hemp, as defined by Cal. Health and Safety Code, § 11018.5, or the weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink or other product. CANNABIS does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.

CANNABIS CONCENTRATE. Manufactured cannabis that has undergone a process to concentrate the cannabinoid active ingredient, thereby increasing the product’s potency.

CANNABIS CULTIVATION. Any activity involving the planting, growing, harvesting, drying, curing, grading or trimming of cannabis, including nurseries.

COMMERCIAL CANNABIS ACTIVITY. Includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, distribution or sale of cannabis and cannabis products.

FULLY ENCLOSED AND SECURE STRUCTURE. Within a fully enclosed and secure structure that complies with the California Building Code, as adopted in the City of San Bernardino, or, if exempt from permit requirements, that has a complete roof enclosure supported by connecting walls extended from the ground to the roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments; is secure against unauthorized entry; and is accessible only through one or more lockable doors and accessible only to the owner or tenant. Walls and roofs must be constructed of solid materials that cannot be easily broken through such as two inches by four inch or thicker studs overlaid with three-eighths-inch or thicker plywood or the equivalent. Plastic sheeting, regardless of gauge, or similar products do not satisfy this requirement. If indoor grow lights or air filtration systems are used, they must comply with the California Building, Electrical and Fire Codes as adopted by the City of San Bernardino.

INDOOR CANNABIS CULTIVATION. Cultivation of cannabis using exclusively artificial lighting.

MEDICAL CANNABIS or MEDICINAL CANNABIS. Cannabis that is intended to be used for medical cannabis purposes in accordance with the Compassionate Use Act of 1966 (“CUA,” Cal. Health and Safety Code, §§ 11362.5 et seq.); the Medical Marijuana Program Act (“MMPA,” Cal. Health and Safety Code, §§ 11362.7 et seq.); and the Medicinal Adult Use Cannabis Regulation and Safety Act (“MAUCRSA,” the Cal. Business and Professions Code, Division 10).

MIXED-LIGHT CANNABIS CULTIVATION. Cultivation of cannabis using any combination of natural and supplemental artificial lighting. Greenhouses, hoop houses, hot houses and similar structures, or light deprivation systems, are included in this category.

OUTDOOR CANNABIS CULTIVATION. Cultivation of cannabis in the open air using no artificial lighting conducted in the ground or in containers outdoors with no covering. OUTDOOR CULTIVATION does not include greenhouses, hoop houses, hot houses or similar structures.

PERSONAL CULTIVATION. Cannabis cultivation conducted by an individual strictly for that individual’s personal use, possession, processing, transporting or giving away without any compensation whatsoever in accordance with this code and state law, including, but not limited to, Cal. Health and Safety Code, §§ 11362.1 and 11362.2, as may be amended. PERSONAL CULTIVATION also means and includes cultivation of medical cannabis conducted by a qualified patient exclusively for his or her personal medical use, and cultivation conducted by a primary caregiver for the personal medical 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, §§ 11362.7 and 11362.765, as may be amended. Except as herein defined, PERSONAL CULTIVATION does not include, and 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.

PRIMARY CAREGIVER. Shall have the same meaning as set forth in Cal. Health and Safety Code, § 11362.7, as the same may be amended from time to time.

PRIVATE RESIDENCE or RESIDENCE. A house, apartment unit, mobile home or other similar dwelling which is permitted by the city.

QUALIFYING PATIENT or QUALIFIED PATIENT. Shall have the same meaning as set forth in Cal. Health and Safety Code, § 11362.7, as the same may be amended from time to time.

(Ord. MC-1466, passed 3-7-2018)

Cross-reference:

Building Codes, see Title 15, Chapters 15.04 and 15.05

(A) Indoor cannabis cultivation and mixed-light cannabis cultivation for personal use is permitted within all private residential dwellings and accessory structures to all private residential dwellings within all zoning districts, subject to all of the following minimum standards.

(1) All indoor cannabis cultivation and mixed-light cannabis cultivation for personal use, including by a qualified patient or primary caregiver, shall occur in a private residential dwelling or accessory structure to a private residential dwelling, as those terms are defined in Chapter 19.02.

(2) No more than six cannabis plants may be cultivated by either a qualified patient, primary caregiver or an individual over 21 years old at each private residential dwelling or accessory structure regardless of the number of qualified patients or adults 21 and older who reside at such private residential dwelling. Cultivation of more than six plants per residential dwelling or accessory structure shall be considered commercial cannabis activity, not personal cultivation and shall be subject to all the requirements for commercial cannabis activity within this code.

(3) Medical cannabis shall only be cultivated by:

(a) A qualified patient exclusively for his or her own personal medical use but who does not provide, donate, sell or distribute medical cannabis to any other person and who can provide a written doctor’s recommendation to the city upon request; or

(b) A primary caregiver who cultivates, possesses, stores, manufactures, transports, donates or provides medical cannabis exclusively for the personal medical purposes of no more than five specified qualified patients for whom he or she is the primary caregiver, but who does not receive remuneration for these activities except for compensation in full compliance with Cal. Health and Safety Code, § 11362.765(c).

(4) For persons other than qualified patients or primary caregivers, all personal cultivation shall be conducted by persons 21 years of age or six cannabis plants, regardless of the number of persons residing at the private residential dwelling.

(5) Written consent from all owners of the property to cultivate cannabis within the residential dwelling or in a fully enclosed and secure accessory structure shall be obtained and shall be kept on the property, and available for inspection by the Chief of Police, or his or her designee, upon request. The written consent shall only be valid for 12 months from the signing of the consent.

(6) Cannabis cultivation of medical and non-medical cannabis for personal use may occur inside a private residential dwelling and/or an accessory building or structure on the same parcel, subject to the following restrictions.

(a) Structures and equipment used for indoor cannabis cultivation and/or mixed-light cannabis cultivation, such as indoor grow lights, shall comply with all applicable Zoning, Building, Electrical and Fire Code regulations, as adopted by the city.

(b) All accessory buildings and structures used for indoor cannabis cultivation and/or mixed-light cannabis cultivation shall comply with the locational and other requirements set forth in Title 19.

(c) Personal cultivation of cannabis shall not interfere with the primary occupancy of the building or structure, including regular use of kitchen(s) or bathroom(s).

(d) The use of generators to power any cultivation equipment is prohibited.

(e) All property improvements, if any, shall comply with the California Building, Electrical and Fire Codes, as adopted by the city.

(f) Any fully enclosed and secure structure or residence used for cannabis cultivation shall have a ventilation and filtration system installed that shall prevent cannabis plant odors from exiting the interior of the structure and that shall comply with the Building Code adopted by the city.

(g) No exterior evidence of cannabis cultivation occurring at the property shall be discernable from the public right-of-way.

(h) Nothing in this section is intended, nor shall it be construed, to preclude any landlord from limiting or prohibiting personal cultivation of cannabis by tenants.

(i) Nothing in this section is intended, nor shall it be construed, to authorize commercial cultivation of cannabis.

(j) Nothing in this section is intended, nor shall it be construed, to authorize any public or private nuisance as specified in this code.

(k) The cultivation area shall be in a locked space inaccessible to minors, visitors, vandals or anyone not authorized to possess cannabis.

(7) The area of cultivation shall not adversely affect the health or safety of the occupants of the private residence or the parcel or any other property by creating dust, glare, heat, noise, noxious gasses, odor, smoke, traffic, vibration, mold or other impacts, and shall not be maintained as to constitute a hazard due to use or storage of materials, processes, products or wastes.

(8) Cultivation shall not occur within any private residential dwelling containing a daycare center, as defined in Chapter 5.10.

(B) Outdoor cannabis cultivation (i.e., in the open air) is prohibited within all zoning districts.

(C) It shall be unlawful for any person to engage in personal cultivation without registering with the city. The registration shall require the person engaging in personal cultivation to provide his or her name, address, telephone number and any other information determined necessary to protect the health, safety and welfare of the residents and businesses of the city by the City Manager, or his or her designee. The registration may require the payment of a fee as set by resolution of the Mayor and City Council.

(Ord. MC-1466, passed 3-7-2018)

Cross-reference:

Building Codes, see Title 15, Chapters 15.04 and 15.05

Each and every violation of the provisions of this chapter is deemed unlawful and a public nuisance and may be summarily abated by the City Manager, Chief of Police or designee of either of them. The city may recover any nuisance abatement costs and/or administrative fines relating to such violations in accordance with Cal. Gov’t Code, §§ 38773.1 and 38773.5 in accordance with Chapter 8.30.

(Ord. MC-1466, passed 3-7-2018)

Each and every violation of this chapter shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by the city. Additionally, as a nuisance per se, any violation of this chapter shall be subject to injunctive relief, disgorgement and payment to the city for any monies unlawfully obtained, costs of abatement, costs of investigation, attorneys’ fees and any other relief or remedy available at law or in equity.

(Ord. MC-1466, passed 3-7-2018)

Any person causing, permitting, aiding, abetting, suffering or concealing a violation of this chapter shall be guilty of a misdemeanor, and may, in the discretion of the City Attorney, be prosecuted as a misdemeanor and, upon conviction, be subject to a fine not to exceed $1,000 or imprisonment in the city or county jail for a period of not more than six months, or by both such fine and imprisonment. Each day a violation is committed or permitted to continue shall constitute a separate offense. The City Attorney, in his or her sound discretion, may prosecute a violation of this chapter as an infraction, rather than a misdemeanor, or reduce or agree to the reduction of a previously filed misdemeanor to an infraction. Any person convicted of an infraction under the provisions of this chapter shall be punished by a fine not exceeding $100 for the first violation, a fine not exceeding $200 for a second violation within one year and a fine not exceeding $500 for a third violation within one year. A fourth violation of this chapter within one year shall be charged as a misdemeanor and may not be reduced to an infraction.

(Ord. MC-1466, passed 3-7-2018)

The remedies provided herein are not to be construed as exclusive remedies. The city is authorized to pursue any proceedings or remedies provided by law.

(Ord. MC-1466, passed 3-7-2018)