Part 1 — PURPOSE AND INTENT

In 1996, the voters of the State of California approved Proposition 215, entitled "The Compassionate Use Act of 1996" ("CUA"). The intent of Proposition 215 was to enable persons who are in need of cannabis for medical purposes to obtain and use it under limited, specific purposes. On January 1, 2004, Senate Bill 420, entitled "The Medical Marijuana Program Act" ("MMP"), became effective. The intent of the MMP was to clarify the scope of the CUA. Nothing in the MMP prevents cities and counties from adopting and enforcing rules and regulations consistent with the CUA and the MMP. The federal government has issued guidelines for states and local governments that have enacted laws authorizing Cannabis-related conduct,

requiring them to "implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests."

Specifically, the Department of Justice stated that regulations must focus on:

• Preventing the distribution of cannabis to minors;

• Preventing revenue from the sale of cannabis from going to criminal enterprises, gangs, and cartels;

• Preventing the diversion of cannabis from states where it is legal under state law in some form to other states;

• Preventing state-authorized cannabis activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;

• Preventing violence and the use of firearms in the cultivation and distribution of cannabis;

• Preventing drugged driving and the exacerbation of other adverse public health consequences associated with cannabis use;

• Preventing the growth of cannabis on public lands and the attendant public safety and environmental dangers posed by cannabis production on public lands; and

• Preventing cannabis possession or use on federal property.

On November 8, 2016, California voters approved Proposition 64, the Adult Use of Marijuana Act, which permits the non-medical use, adult use, or recreational use of cannabis by individuals age twenty-one (21) and older. Under the proposition, individuals age twenty-one (21) and older would be allowed to smoke or ingest cannabis products as well as possess, process, transport, purchase, obtain, or give away without compensation of any sort, cannabis, and cannabis products, subject to the following limitations:

• Not more than twenty-eight and one-half (28.5) grams of cannabis (not Concentrated Cannabis);

• Eight (8) grams of Concentrated Cannabis including that contained in cannabis products;

• Six (6) living plants per residence (including possession of the cannabis produced by those plants); and

• Public consumption of cannabis is not allowed (except in limited circumstances), and consumption in motor vehicles is prohibited.

The use of cannabis by minors is harmful to their health, brain development, and academic achievement. Furthermore, nothing in state law or federal guidelines permits the distribution of cannabis to minors. The federal guidelines express serious concerns about distribution to minors. This Chapter expressly prohibits the distribution of cannabis to minors.

The federal guidelines express concerns about funding criminal enterprises. This Chapter ensures that patients, caregivers, and residents of San José know the origin of the cannabis being cultivated and distributed in San José Cannabis Businesses. It is the intent of this Chapter to keep drug cartels, criminals, and gangs out of the business of cultivating or distributing cannabis in San José. It is the intent of this Chapter to regulate the cultivation of cannabis in a manner which is responsible and protects the health,

safety, and welfare of the residents of San José. It is the intent of this Chapter to protect seriously ill patients and persons age twenty-one (21) and older from cannabis that has been grown or processed in an unhealthy or unsafe manner or by individuals whose motivation is not patient's or person's health and safety.

It is the intent of the City of San José to have a strong and effective regulatory and enforcement system that addresses threats to public safety, health and other law enforcement interests through robust controls and procedures that are effective in practice.

The provisions in this Chapter do not interfere with a patient's right to use Medical Cannabis under state law, nor do they criminalize the possession or cultivation of Medical Cannabis by specifically defined classifications of persons. Additionally, the provisions of this Chapter do not interfere with the rights of a person age twenty-one (21) and older to cultivate or possess Non-medical Cannabis under state law.

It is the purpose and intent of this Chapter to accommodate the needs of the seriously ill and persons age twenty-one (21) and older who want safe access to cannabis from licensed providers, to protect their health and safety, and to protect our neighborhoods, children, and businesses from negative impacts while complying with state law and federal guidelines.

All Cannabis Businesses and Cannabis Activities shall comply with all provisions of this Code, state laws related to cannabis and all other applicable state and local laws. Nothing in this Chapter purports to, nor shall permit activities that are otherwise illegal under state or local law.

By adoption of this Chapter and the provisions of Title 20 related to cannabis, it is the intent of the City to set forth the conditions and criteria which must be met to establish an affirmative defense to criminal and civil enforcement of the San José Municipal Code if such enforcement is based solely upon the conduct recognized herein. It is the intent of the City that the party invoking the affirmative defense must demonstrate strict compliance with this Chapter, the provisions of Title 20 relating to cannabis, and the rules and regulations promulgated thereunder.

Notwithstanding the foregoing, all persons who choose to be involved with Medical or Non-medical Cannabis do so entirely at their own risk that their involvement may constitute a violation of federal or state law.

(Ord. 30210.)

Part 2 - Definitions

The definitions set forth in this Part shall govern the application and interpretation of this Chapter. Any reference to California statutes includes any regulations promulgated thereunder and is deemed to include any successor or amended version of the referenced statute or regulatory provision.

(Ord. 30210.)

"Attending Physician" shall have the definition given in California Health and Safety Code Section 11362.7.

(Ord. 30210.)

"Business entity" means any organization or enterprise including, but not limited to, a proprietorship, partnership, firm, business trust, joint venture, syndicate, corporation, association, or nonprofit organization.

(Ord. 30726.)

"Cannabis" shall have the definition given in California Business and Professions Code Section 26001(f).

(Ords. 30210, 31099.)

Each of the following is considered a "Cannabis Activity", whether for medical or non-medical use, or both:

A.

Cultivation of cannabis;

B.

Manufacture of cannabis;

C.

Distribution of cannabis;

D.

Retail sales or transfers of cannabis at a retail storefront or dispensary and/or by delivery; or

E.

Testing of cannabis at a testing laboratory.

(Ords. 30210, 30726, 31099, 31273.)

"Cannabis Business" means any business, Collective, establishment, association or any other organization or any Person, engaged in any Cannabis Activity, whether for medical or non-medical use, or both.

(Ord. 30210.)

"Concentrated Cannabis" shall have the definition given in Title 4 of the California Code of Regulations Section 15000(h).

(Ords. 30210, 31099.)

"Cultivation" shall have the definition given in Title 4 of the California Code of Regulations Section 15000(q).

(Ords. 30210, 31099.)

"Cultivation Site" shall have the definition given in Title 4 of the California Code of Regulations Section 15000(r).

(Ords. 30210, 31099.)

"Customer" means a person, including a Qualified Patient or Primary Caregiver, who purchases or receives cannabis for medical or non-medical use.

(Ord. 30210.)

"Deliver" means to transport and transfer cannabis from the Location or Premises of the Cannabis Business to a Customer located at another property, Location, or Premises. Deliver does not include distribution.

(Ords. 30210, 31099.)

"Delivery Employee" shall have the definition given in Title 4 of the California Code of Regulations Section 15000(s).

(Ord. 31099).

"Delivery-Only Business" means a business which only delivers cannabis and does not operate a premises or location where transfers of cannabis to customers occur. Also referred to as "Non-Storefront Retailer" per Title 4 of the California Code of Regulations Section 15414.

(Ords. 30726, 31099).

Editor's note— Ord. 31099, § 8, adopted Aug. 13, 2024, renumbered § 6.88.212.5 as § 6.88.212.3. The historical notation has been retained with the amended provisions for reference purposes.

"Delivery-Only Site" means the property, Location, or Premises from which only deliveries of cannabis are initiated.

(Ords. 30927, 31099.)

Editor's note— Ord. 31099, § 9, adopted Aug. 13, 2024, renumbered § 6.88.212.10 as § 6.88.212.5. The historical notation has been retained with the amended provisions for reference purposes.

"Delivery Vehicle" means a vehicle used to facilitate delivery.

(Ord. 31099.)

"Dispensary" means the property, Location, or Premises where transfers of cannabis to customers occur.

(Ords. 30210, 30726, 31273.)

"Dispense" means the transfer of Non-medical Cannabis to a person age twenty-one (21) or older, or the transfer of Medical Cannabis to a Qualified Patient age twenty-one (21) or older or Primary Caregiver age twenty-one (21) or older.

(Ords. 30210, 30726.)

"Distribute" shall have the same meaning as Title 4 of the California Code of Regulations Section 15000(u). Distribute does not include delivery to a Customer.

(Ords. 30210, 31099.)

"Distribution Site" means the property, Location, or Premises where cannabis is distributed or stored for distribution.

(Ord. 30210.)

"Electronic Age Verification Device" means a device capable of quickly and reliably confirming the age of the cardholder of a government issued identification card using computer processes.

(Ord. 30210.)

"Equity Employee" means an individual who meets the criteria in subsections (1) through (3) in Section 6.88.395 A.

(Ord. 30254.)

"Equity Business Owner" means an Owner, as defined by Section 6.88.255, who meets the criteria of Section 6.88.395 B.

(Ords. 30254, 30726.)

"Equity Business Partnership" means a Cannabis Business where fifty-one percent (51%) or more of the entity applying for a Cannabis Business Registration is owned and controlled in aggregate by individual partners, each of whom meets the criteria of Section 6.88.395 B.

(Ord. 30726.)

"Equity Cannabis Business" means a cannabis business where fifty-one percent (51%) or more of the business's aggregate interest, legal or equitable, or otherwise, is owned and controlled by one or more Equity Business Owners.

(Ord. 30726.)

"Financial Interest in a Commercial Cannabis Business" shall have the same meaning as Title 4 of the California Code of Regulations Section 15004.

(Ords. 30726, 31099.)

"Identification Card" shall have the definition given in California Health and Safety Code Section 11362.7.

(Ord. 30210.)

"Location" means the lot or parcel or portion of a lot or parcel that is used by a Cannabis Business.

(Ord. 30210.)

Editor's note— Ord. 31099, § 13, adopted Aug. 13, 2024, repealed § 6.88.225, which pertained to manager and derived from Ords. 30210, 30726.

"Manufacture" shall have the definition given in Title 4 of the California Code of Regulations Section 15000(OO) and Section 15000(pp).

(Ords. 30210, 31099.)

"Manufacturing Site" means the property, Location, or Premises where cannabis is manufactured or stored for manufacture.

(Ord. 30210.)

"Marijuana" shall have the same definition as "cannabis" given in California Health and Safety Code Section 11018. Marijuana includes cannabis.

(Ord. 30210.)

"Medical Cannabis" means cannabis used for medical purposes in accordance with California Health and Safety Code Section 11362.5, including any product containing Medical Cannabis, manufactured in accordance with all state and local laws.

(Ord. 30210.)

"Medical Cannabis Business" means a business entity which includes medical cannabis in one or more of its cannabis activities.

(Ord. 30927.)

"Medical Cannabis Collective" or "Collective" means an incorporated or unincorporated association, composed of four (4) or more individuals who are Qualified Patients and designated Primary Caregivers of Qualified Patients (individually and collectively referred to as "member(s)") who associate at a particular location to collectively or cooperatively cultivate Medical Cannabis, in strict accordance with California Health and Safety Code Sections 11362.5 et seq.

(Ord. 30210.)

"Medical Cannabis Transfers" means:

A.

The transfer of Medical Cannabis from a Primary Caregiver to that Primary Caregiver's Qualified Patient for such consideration as is sufficient to reimburse that Primary Caregiver for the Primary Caregiver's out-of- pocket expenses and for the Primary Caregiver's services;

B.

Transfers of Medical Cannabis from a Cannabis Business to a person aged twenty-one (21) or older in possession of a Physician's Recommendation for Medical Cannabis or in possession of a Medical Cannabis Identification Card as defined in Section 6.88.218 of this Code or a Primary Caregiver aged twenty-one (21) or older; or

C.

Any sale, transfer or barter of Medical Cannabis in exchange for money or any other thing of value whatsoever, including without limitation, donations, labor or services rendered.

(Ords. 30210, 30726.)

"Non-medical Cannabis" means cannabis intended for, transferred to, distributed to, possessed by, or used by any person who is not a Qualified Patient. Non-medical Cannabis includes cannabis that is adult use or recreational use.

(Ord. 30210.)

"Non-medical Cannabis Transfers" means any sale, transfer or barter of Non-medical Cannabis in exchange for money or any other thing of value whatsoever, including without limitation donations, labor or services rendered.

(Ord. 30210.)

"On-Site Designated Representative" means a natural person that is designated by the Cannabis Business to be present, and who is present, at all times during the Cannabis Business's hours of operation.

(Ords. 30210, 31099.)

"Owner" shall have the definition given in Title 4 of the California Code of Regulations Section 15003.

(Ords. 30210, 30726, 31099.)

"Person" shall have the definition given in Section 1.04.020 of this Code.

(Ord. 30210.)

"Personal Use Cultivation" includes cultivation by any of the following:

A.

An individual Qualified Patient or Primary Caregiver of Qualified Patients who cultivates Medical Cannabis at the residence of the Qualified Patient or Primary Caregiver, in strict accordance with California Health and Safety Code Sections 11362.5 et seq.;

B.

An association of less than four (4) individuals who are Qualified Patients and Primary Caregivers of Qualified Patients and who associate at the residence of one (1) of the Qualified Patients or Primary Caregivers to collectively or cooperatively cultivate Medical Cannabis, in strict accordance with California Health and Safety Code Sections 11362.5 et seq.; or

C.

An individual age twenty-one (21) or older who cultivates not more than six (6) Non-medical Cannabis plants at his or her private residence in strict accordance with all local and state laws and regulations.

(Ord. 30210.)

"Physician's Recommendation" shall have the definition given in California Business and Professions Code Section 26001(as).

(Ords. 30210, 31099.)

"Premises" shall have the definition given in Title 4 of the California Code of Regulations Section 15000(ccc).

(Ords. 30210, 31099.)

"Primary Caregiver" shall have the definition given in California Health and Safety Code Section 11362.7.

(Ord. 30210.)

"Private Medical Record" means documentation of the medical history of a Qualified Patient, and shall not include the recommendation of an Attending Physician or doctor for the medical use of cannabis, an Identification Card, or the designation of a Primary Caregiver by a Qualified Patient.

(Ords. 30210, 31099.)

"Process" shall have the definition given in Title 4 of the California Code of Regulations Section 15000(eee).

(Ords. 30210, 31099.)

"Qualified Patient" means an individual who is entitled to the protections of California Health and Safety Code Section 11362.5.

(Ord. 30210.)

"Retail Storefront" means the property, Location, or Premises where transfers of cannabis to customers occur.

(Ords. 30726, 31273.)

"Security Personnel" means any Person who performs security related tasks on behalf of the Cannabis Business.

(Ord. 30210.)

"Testing Laboratory" shall have the definition given in California Business and Professions Code Section 26001.

(Ord. 30210.)

"Transport" shall have the definition given in California Code of Regulations Section 15000(uuu). "Transport" means all activity involved in the movement of cannabis from one (1) location to another, including, but not limited to, loading, shipping and receiving. Transport does not include delivery to a Qualified Patient, Primary Caregiver or individual person age twenty-one (21) or older.

(Ords. 30210, 31099.)

"Type 6 Manufacturing" shall have the definition given in Title 4 of the California Code of Regulations, Section 17006.

(Ords. 30210, 31099.)