Chapter 5.54 — CANNABIS (MARIJUANA)

Editor's note— Ord. No. 2017-1453, § 2(Exh. A), adopted Nov. 14, 2017, amended Ch. 5.54 in its entirety to read as herein set out. Former Ch. 5.54, §§ 5.54.010—5.54.050 was entitled "Marijuana" and derived from: Ord. No. 2006-1265, adopted Feb. 28, 2006; and Ord. No. 2015-1415, adopted Jan. 12, 2016.

It is the intent of this chapter to protect and preserve the public health, safety and welfare of the City and its residents and businesses. Possession, sale and distribution of medicinal and non-medicinal cannabis remain prohibited by federal law under the Controlled Substances Act. The purpose of this chapter is to expressly prohibit commercial cannabis activities, cannabis deliveries and the outdoor cultivation of cannabis from occurring in any zone within the jurisdictional limits of the City of San Marcos to the fullest extent authorized by State law, as well as to prohibit the use and possession of cannabis and cannabis products in public places, and to reasonably regulate the personal, indoor cultivation of cannabis consistent with State law, among other operations, uses and activities. The City Council's prohibition and/or regulation of such operations, uses and activities is within the authority conferred upon the City by State law and is an exercise of the City Council's police powers to enact and enforce regulations for the public benefit, safety and welfare of the City.

(Ord. No. 2017-1453, § 2(Exh. A), 11-14-2017)

For purposes of this chapter, the following terms and phrases shall have the meaning as defined in this section. Whenever any word or phrase used in this chapter is not defined herein, but is defined under State law, the definition set forth in State law is incorporated into this chapter as though fully set forth herein.

(a)

Cannabis or Marijuana shall have the same meaning as the definition set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. Notwithstanding any provisions of California Business and Professions Code Section 26001, the term "cannabis" shall also include all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds of the plant; 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" shall also include the separated resin, whether crude or purified, obtained from cannabis. Whenever the term "cannabis" is used throughout this Code, the term may include medicinal cannabis and/or non-medicinal cannabis.

"Cannabis" shall not include either of the following:

(1)

"Industrial hemp" as defined by California Health and Safety Code Section 11018.5; or

(2)

The weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink or other product.

(b)

Cannabis Accessories shall have the same meaning as the definition set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. Notwithstanding any provisions of California Business and Professions Code Section 26001, the term "cannabis accessories" shall also include any equipment, products or materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, smoking, using, vaporizing, or containing cannabis for ingesting, inhaling, or otherwise introducing cannabis or cannabis products into the human body.

(c)

Cannabis Products shall have the same meaning as the definition set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. Notwithstanding any provisions of California Business and Professions Code Section 26001, the term "cannabis products" shall also include 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 or topical product containing cannabis or concentrated cannabis and other ingredients. Whenever the term "cannabis products" is used throughout this Code, the term may include medicinal cannabis products and/or non-medicinal cannabis products.

(d)

Commercial Cannabis Activity shall have the same meaning as the definition set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. Notwithstanding any provisions of California Business and Professions Code Section 26001, the term "commercial cannabis activity" shall also include the operation of a dispensary, and the commercial cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or retail, wholesale, or other sale of cannabis and/or cannabis products, and any and all associated business and/or operational activities and uses. Commercial cannabis activity includes operations, activities and uses that are for profit and/or not for profit.

(e)

Cultivation shall have the same meaning as the definition set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. Notwithstanding any provisions of California Business and Professions Code Section 26001, the term "cultivation" shall also include the planting, growing, harvesting, drying, cleaning, curing, grading, trimming, packing, storing, handling or processing of cannabis, cannabis products and/or the byproducts of the cannabis products, and any and all associated business and/or operational activities and uses.

(f)

Delivery shall have the same meaning as the definition set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. Notwithstanding any provisions of Business and Professions Code Section 26001, the term "delivery" shall also include the commercial delivery, transfer or transport of cannabis or cannabis products by a State-licensed retailer of any technology platform to arrange for the commercial delivery, transfer or transport of cannabis or cannabis products, to or from any location within the jurisdictional limits of the City of San Marcos, and any and all associated business and/or operational activities and uses. "Delivery" shall not include the transportation of cannabis or cannabis products on public roads by a State-licensed retailer, micro- business or nonprofit licensed under California Business and Professions Code Section 26070.5, when transporting cannabis or cannabis products in compliance with State law and when the delivery originates from and terminates at a location outside the City.

(g)

Dispensary means any facility or location, whether fixed or mobile, where cannabis and/or cannabis products are sold, distributed or made available. For purposes of this chapter, the terms "clinic", "cooperative", "collective", "cannabis establishment", "microbusiness" or any other establishments where cannabis and/or cannabis products are sold shall have the same meaning as the term "dispensary" defined by this section. A dispensary shall not include the following uses, as long as the location of such uses is otherwise regulated by this Code or applicable law, a clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code, a healthcare facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code, a facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code, 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, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the California Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the California Health and Safety Code, as long as such use complies strictly with applicable law, including but not limited to, California Health and Safety Code Section 11362.5 et seq., and the San Marcos Municipal Code, including, but not limited to, the provisions of the zoning ordinance contained in Title 20 of this Code.

(h)

Indoor shall mean a private residence located within a fully enclosed and secure structure.

(i)

Laboratory Testing or Testing Laboratory shall have the same meaning as the definition set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. Notwithstanding any provisions of California Business and Professions Code Section 26001, the term "laboratory testing" shall also include a laboratory, facility or entity in the State that offers or performs tests of cannabis and/or cannabis products and that is both of the following: (i) accredited by an accrediting body that is independent from all other persons involved in commercial cannabis activity in the State; and (ii) licensed by the State Bureau of Cannabis Control within the Department of Consumer Affairs.

(j)

Manufacture shall have the same meaning as the definition set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. Notwithstanding any provisions of Business and Professions Code Section 26001, the term "manufacture" shall also include the compounding, blending, extracting, infusing, or otherwise making or preparation of cannabis products, and any and all associated business and/or operational activities and uses.

(k)

Medicinal Cannabis or Medicinal Cannabis Products shall have the same meaning as the definition set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. Notwithstanding any provisions of Business and Professions Code Section 26001, the term "medicinal cannabis" or "medicinal cannabis products" shall also include cannabis or cannabis products, respectively, intended to be sold for medical use to a medicinal cannabis patient with a valid physician's recommendation and/or a medicinal cannabis patient's primary caregiver, as that term is defined in the Compassionate Use Act of 1996 (California Health and Safety Code Section 11362.5 et seq.).

(l)

Medicinal Cannabis Patient means a qualified patient, as defined in Section 11362.7 of the California Health and Safety Code, who possesses a physician's recommendation that complies with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2, or a

qualified patient or primary caregiver for a qualified patient issued a valid identification card pursuant to Section 11362.71 of the California Health and Safety Code.

(m)

Non-Medicinal Cannabis or Non-Medicinal Cannabis Products shall mean cannabis or cannabis products, respectively, intended to be sold for non-medicinal use by an adult 21 years of age or older pursuant to State law.

(n)

Outdoor shall mean any location that is not within a fully enclosed and secure structure.

(o)

Public Place shall mean any area to which the public is invited or in which the public is permitted, including, but not limited to, retail stores, retail service establishments, retail food production and marketing establishments, restaurants, theaters, waiting rooms, reception areas, educational facilities and public transportation facilities. Public place shall also include all buildings owned, leased or occupied by the City and all City facilities, grounds, trails and/or parks and recreational areas, whether or not enclosed. A private residence is not a public place.

(p)

Primary Caregiver shall have the same meaning as the definition set forth in California Health and Safety Code Section 11362.7, as may be amended from time to time.

(q)

Private Residence shall mean a house, apartment unit, mobile home or other similar dwelling, and includes any accessory structure that is fully enclosed, secure and located upon the grounds of the private residence.

(r)

Processing means any method used to prepare cannabis, cannabis products and/or the byproducts of the cannabis products for commercial retail and/or wholesale sales, including, but not limited to, cleaning, curing, preparation, laboratory testing, manufacturing, packaging, and extraction of active ingredients to create cannabis products and concentrates.

(s)

Transportation shall mean to transport for sale. "Transportation" shall not include the transportation of cannabis or cannabis products on public roads by a State-licensed retailer, microbusiness or nonprofit licensed under California Business and Professions Code Section 26070.5, when transporting cannabis or cannabis products in compliance with State law and when the transportation originates from and terminates in a location outside the City.

(t)

Volatile Solvent shall have the same meaning as the definition set forth in California Health and Safety Code Section 11362.3, as that section may be amended from time to time. Notwithstanding any provisions of Business and Professions Code Section 26001, the term "volatile solvent" shall also include a solvent that is or produces a flammable gas or vapor that, when present in the air in sufficient quantities, will create explosive or ignitable mixtures, and volatile organic compounds, including: (i) explosive gases, such as butane, propane, xylene, styrene gasoline, Kerosene, 02 or H2; and (ii) dangerous poisons, toxins or carcinogens, such as methanol, iso-propyl, alcohol, methylene chloride, acetone, benzene, toluene, and tri-chloro-ethylene.

(Ord. No. 2017-1453, § 2(Exh. A), 11-14-2017; Ord. No. 2023-1535, § 2(Exh. A), 10-10-2023)

(a)

Cannabis Operations, Uses and/or Activities Requiring a State License. Any cannabis operation, use and/or activity for which a State license is required under California Business and Professions Code Section 26050, as that section may be amended from time to time, is prohibited in all zones within the City's jurisdictional limits. No permit, license or other entitlement or authorization, whether conditional or otherwise, shall be issued for the establishment of any such operation, use and/or activity.

(b)

Commercial Cannabis Activity. Commercial cannabis activity, as defined in Section 5.54.020, and any and all associated business and/or operational activities and uses, is/are prohibited in all zones within the City's jurisdictional limits. No person shall establish, operate, maintain, conduct or allow any commercial cannabis activity anywhere within the City. No permit, license or other entitlement or authorization, whether conditional or otherwise, shall be issued for the establishment of such use.

(c)

Property Owners. A property owner shall not rent, lease or otherwise permit any business that engages in any commercial cannabis activity to occupy real property and/or any improvements thereon in the City. A property owner shall not allow any person or business to establish, operate, maintain, conduct or engage in commercial cannabis activity on any real property owned or controlled by that property owner within the City.

(d)

Deliveries. To the extent not already prohibited by subsection (b) of this Section, cannabis delivery, as defined in Section 5.54.020, by any person or entity, including, but not limited to, dispensaries, and any and all associated business and/or operational activities and uses, is prohibited in all zones within the City's jurisdictional limits. No permit, license or other entitlement or authorization, whether conditional or otherwise, shall be issued for the establishment of such operation, use and/or activity. Notwithstanding the foregoing, the delivery of Medicinal Cannabis to Medical Cannabis Patients or their Primary Caregivers within the City's jurisdictional limits from locations outside the City's jurisdictional limits is permitted. Nothing in this chapter is intended to, nor shall it be construed to, permit and/or legalize any delivery operation, use, and/or activity that is otherwise prohibited under this chapter and/or California law, including, but not limited to, the delivery of Non-Medicinal Cannabis to any location or individual within the City's jurisdictional limits, which remains prohibited.

(e)

Transportation. To the extent not already prohibited by subsection (b) of this section, cannabis transportation, as defined in Section 5.54.020, by any person or entity, including, but not limited to, dispensaries, and any and all associated business and/or operational activities and uses, is prohibited in all zones within the City's jurisdictional limits. No permit, license or other entitlement or authorization, whether conditional or otherwise, shall be issued for the establishment of such operation, use and/or activity. Notwithstanding the foregoing, the transportation of Medicinal Cannabis to Medical Cannabis Patients or their Primary Caregivers to delivery locations within the City's jurisdictional limits from locations outside the City's jurisdictional limits is permitted. Nothing in this chapter is intended to, nor shall it be construed to, permit and/or legalize any transportation operation, use, and/or activity that is otherwise prohibited under this chapter and/or California law, including, but not limited to, the delivery of Non-Medicinal Cannabis to any location or individual within the City's jurisdictional limits, which remains prohibited.

(f)

Outdoor Cultivation. Outdoor cultivation by any person or entity, including, but not limited to, dispensaries and any and all associated business and/or operational activities and uses, is prohibited in all zones within the City's jurisdictional limits. No permit, license, or other entitlement or authorization whether conditional or otherwise, shall be issued for the establishment of such operation, use and/or activity. Nothing in this chapter is intended to, nor shall it be construed to, make legal any outdoor cultivation operation, use and/or activity that is otherwise prohibited under California law. Nothing in this chapter is intended to, nor shall it be construed to, preclude any landlord from limiting or prohibiting outdoor cultivation by its tenants.

(g)

Indoor Cultivation. The prohibition under subsection (b) of this section shall not prohibit the indoor cultivation of six or fewer living cannabis plants, which shall be permitted only within a single private residence, to the extent such cultivation is permitted by State law and complies with the requirements set forth below:

(1)

Cultivation is permitted only within fully enclosed and secure structures within or upon the grounds of the private residence that are inaccessible to persons under the age of 21. Cultivation areas shall be secured by lock and key or other security device which prevents unauthorized entry and shall not be visible from the public right-of-way.

(2)

Cultivation shall be limited to a total of six plants within or upon the grounds of the private residence, whether immature or mature, per private residence, regardless of how many persons reside at the private residence.

(3)

Any lighting, plumbing or electrical components used for cultivation shall comply with all applicable State and local laws, including, but not limited to, those relating to land conversion, current building and fire standards, grading, electricity usage, water usage, water quality, woodland riparian habitat protection, stormwater, and agricultural discharges. Lighting shall not exceed 1,000 watts per light. The use of volatile solvents for cannabis cultivation is prohibited. Any private residence or fully enclosed and secure structure used for cultivation must have proper ventilation and shall not create a humidity or mold problem in violation of this Code or any other applicable State and/or local health and safety regulations.

(4)

Cultivation shall not be conducted in a manner that constitutes a public nuisance. A public nuisance may be deemed to exist if the cultivation produces light, glare, heat, noise, odor, or vibration that is or whose effect is detrimental to the public health, safety or welfare, or that interferes with the reasonable enjoyment of life and property.

(5)

Any private residence where cultivation occurs shall remain at all times a residence with legal and functioning cooking, sleeping and sanitation facilities with proper ingress and egress.

(6)

A portable, fully charged fire extinguisher that complies with the regulations and standards adopted by the State Fire Marshal and all applicable laws shall be kept in every room, space or area where cultivation occurs.

(h)

Use and Possession of Cannabis and Cannabis Products in Public Places. No person shall smoke, ingest, inhale, vaporize or otherwise use or introduce cannabis or cannabis products into the human body, or possess cannabis or cannabis products, in, on, or within any of the following locations:

(1)

Any public place as defined by Section 5.54.020 of this chapter;

(2)

Any location where smoking tobacco is prohibited under chapter 8.80 of this Code or under any other State or local laws;

(3)

Any location where access to the area is open to persons 21 years of age and under;

(4)

Any location where the sale or consumption of alcohol or tobacco is allowed on the premises, except in or upon the grounds of a private residence in compliance with this section;

(5)

Upon the grounds of a school, day care center or youth center, as those terms are defined under California Health and Safety Code Sections 11362.768 and 11363.3, while children are present;

(6)

Within 1,000 feet of a school, day care center or youth center, as those terms are defined under California Health and Safety Code Sections 11362.768 and 11363.3, while children are present at the school, day care center or youth center, except in or upon the grounds of a private residence and only if such use is not detectable by others on the grounds of the school, day care center or youth center while children are present;

(7)

While driving or operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation; and

(8)

While riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(i)

Sale of Cannabis Accessories. No person or entity shall sell or permit to be sold any cannabis accessories, or violate any other local, State or federal law regulating drug paraphernalia, including, but not limited to, California Health and Safety Code Section 11362.3, as that section may be amended from time to time.

(Ord. No. 2017-1453, § 2(Exh. A), 11-14-2017; Ord. No. 2023-1535, § 2(Exh. A), 10-10-2023)

Nothing in this chapter shall be interpreted to the effect that the City's permissive zoning regulations, which prohibit any use unless expressly permitted and which are located in Title 20 of this Code, allows any other use not specifically listed therein.

(Ord. No. 2017-1453, § 2(Exh. A), 11-14-2017)

Any operation, use and/or activity that takes place in violation of any provision of this chapter is unlawful, and is hereby declared to be a public nuisance subject to abatement by the City. Each and every day a violation of any provision of this chapter exists constitutes a separate and distinct violation.

(Ord. No. 2017-1453, § 2(Exh. A), 11-14-2017)

(a)

Any person who knowingly or willfully violates any provision of this chapter is guilty of a misdemeanor, which shall be punishable in accordance with Section 1.12.010 of this Code.

(b)

In addition to any other remedies provided in this Code, any violation of this chapter may be enforced by a civil action brought by the City pursuant to Section 1.12.020 of this Code. The City is entitled to recover attorneys' fees and any and all costs of suit, including, but not limited to, witness fees, in any such civil action.

(Ord. No. 2017-1453, § 2(Exh. A), 11-14-2017; Amend. of 2-5-2025(1))