Victorville Municipal Code Ch. 13.150 Commercial Cannabis Activity

Footnotes:

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Editor's note— Ord. No. 2376, § 2, adopted November 7, 2017, amended chapter 13.150 in its entirety to read as herein set out. Former chapter 13.150, §§ 13.150.010—13.150.030, pertained to medical marijuana prohibited, and derived from Ord. No. 2352, § 2, 2-2-16.

(a) The purpose of this chapter is to expressly prohibit all commercial cannabis activity in the city, with a limited exception for certain deliveries of medicinal cannabis under specified conditions, and to prohibit outdoor cultivation of cannabis for personal adult use in conformance with the provisions of state law.

(b) The city council finds that the prohibitions in this chapter are necessary for the preservation and protection of the public health, safety, and welfare of the city and are within the authority conferred upon the city council by state law as an excise of its police powers.

(Ord. No. 2376, § 2, 11-7-17)

For purposes of this chapter, the following definitions shall apply:

(a) "Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; 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. For purposes of this Chapter and this Code "Cannabis" includes cannabis that is used for medicinal, non-medicinal or other purposes. "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. For the purpose of this Chapter and this Code "Cannabis" does not mean "industrial hemp" as defined by Section 11018.5 of the California Health and Safety Code.

(b) "Cannabis product" 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 or topical product containing cannabis or concentrated cannabis and other ingredients.

(c) "Code" or "this Code" means the Victorville Municipal Code.

(d) "Commercial cannabis activity" includes the cultivation, possession, manufacture, distribution, processing, storing, dispensing, laboratory testing, packaging, labeling, transportation, delivery or sale of cannabis and cannabis products used for medicinal, non-medicinal, or other purposes, including without limitation, the activities of any business licensed by the State or other government entity under Division 10 of the California Business and Professions Code, or any provision of State law that regulates the licensing of cannabis businesses. "Commercial cannabis activity" does not include the personal adult uses allowed by Health and Safety Code Sections 11362.1 and 11362.2.

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

(f) "Delivery" means the commercial transfer of cannabis or cannabis products to a customer. "Delivery" also includes the use by a retailer of any technology platform owned and controlled by the retailer.

(g) "Distribution" means the procurement, sale, and transport of cannabis and cannabis products between entities licensed under Division 10 of the California Business and Professions Code, as may be amended from time to time.

(h) "Fully enclosed and secure structure" means a space within a greenhouse or other accessory 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 lockable doors.

(i) "Indoors" means inside a private residence or inside a fully enclosed and secure structure accessory to a private residence that is located on the grounds of said private residence.

(j) "Private residence" means a house, an apartment unit, a townhome or condominium, a mobile home, or other similar dwelling that is lawfully used as a residence.

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

(l) "MAUCRSA" means the Medicinal and Adult-Use Cannabis Regulation and Safety Act as codified in Division 10 of the California Business and Professions Code, as the same may be amended from time to time.

(m) "Medicinal cannabis" or "medicinal cannabis product" means cannabis or a cannabis product, respectively, intended to be sold for use pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at Section 11362.5 of the Health and Safety Code, by a medicinal cannabis patient in California who possesses a physician's recommendation.

(n) "Person" means and includes any: A natural person, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization, cooperative and/or collective, and any manager, lessee, agent, servant, officer or employee thereof.

(Ord. No. 2376, § 2, 11-7-17)

(a) Commercial cannabis activity, whether or not for profit, is prohibited in all zones, specific plan areas, and overlay zones of the city. No person shall establish, operate, maintain, conduct, allow, or engage in commercial cannabis activity anywhere within the city, unless otherwise exempted by Section 13.150.040. To the extent that this prohibition conflicts with any other provision of this Code, this prohibition will control.

(b) Subsection (a) above shall prohibit all activities for which a state license is required pursuant to the MAUCRSA, as the same may be amended from time to time. Accordingly, the city shall not issue any permit, license or other entitlement for any activity for which a State license is required under the MAUCRSA, as the same may be amended from time to time. The city shall also not issue any local license to a non-profit entity as described in California Business and Professions Code Section 26070.5.

(c) The chapter shall not be construed to prohibit any commercial cannabis activity that the city is required by state law to permit within its jurisdiction pursuant to the MAUCRSA.

(Ord. No. 2376, § 2, 11-7-17)

(a) Notwithstanding the provisions of Section 13.150.030, the delivery of medicinal cannabis or medicinal cannabis products from a business located outside the city and licensed under the MAUCRSA shall be permitted under the following conditions:

1. The applicant shall present proof of its permit to operate a commercial cannabis delivery service from the city or county in which the business is located.

2. Commencing on January 1, 2018, the applicant shall present proof of required state license(s) issued by the Bureau of Cannabis Control pursuant to Business and Professions Code 26010 et seq.

3. The business license application shall be denied if the applicant or any delivery driver has a felony conviction, any other convictions involving theft, the manufacture, transportation, sale or possession of a controlled substance, or within seven (7) years prior to the application, any convictions involving driving under the influence of alcohol or drugs. Prior to the issuance of a business license and prior to each annual renewal, the applicant shall disclose the names of all drivers to the Victorville Police Department.

4. The applicant shall present proof of the driver's licenses for each driver. Each driver shall be twenty-one (21) years of age or older.

5. The applicant shall pay all applicable business license administrative fees required by Title 16 of this Code.

6. In addition to the administrative fees referenced in subsection (a)(5) of this section, the applicant shall pay a processing fee, as set by resolution of the city council for any driver requested to be added to the license outside of the annual business license renewal process.

7. The delivery vehicles shall not display or advertise any commercial cannabis activity, nor shall they display or advertise the name of the dispensary.

8. Deliveries shall be directly to the residence or business address of the qualified patient who possesses an identification card issued pursuant to California Health and Safety Code Section 11362.7 et seq., or that person's primary caregiver. Any other delivery or transaction is prohibited. The qualified patient or primary caregiver shall maintain a copy of the delivery request and make it available to law enforcement officers upon request as required by California Business and Professions Code Section 26090(d).

9. Delivery drivers shall not transport medicinal cannabis in excess of the limits established by the State. Prior to the issuance of State regulations, no driver may transport more than eight ounces of medical marijuana.

10. All orders shall be packaged by name of the qualified patient with an identification card. The delivery driver shall maintain a copy of the delivery request and make it available upon request to law enforcement officers as required by Business and Professions Code Section 26090(e).

11. Deliveries shall occur only between the hours of 6:00 a.m. and 9:00 p.m.

12. Prior to the issuance and renewal of the business license, the applicant shall present proof that each delivery vehicle is properly registered with California Department of Motor Vehicles.

13. The applicant shall maintain general liability, automobile liability and workers' compensation insurance from an insurance company admitted by the Insurance Commissioner of the State of California to transact the business of insurance in the state for the following types and limits of coverage:

(i) General liability—$1,000,000 million dollars per occurrence, $2,000,000 million dollars aggregate.

(ii) Automobile liability—$1,000,000 million dollars combined single limit (CSL), with coverage including, but not limited to owned autos, hired or non-owned autos, covering any vehicle utilized by applicant, subcontractor, or its officers, employees, servants, volunteers, or agents and independent contractors performing medicinal cannabis delivery services on behalf of the applicant.

(iii) Workers' compensation—$1,000,000 million dollars each accident. (This is the statutory limit required by the State of California.)

The City of Victorville, its officers, officials, employees, agents or volunteers, shall be included as additional insureds on the general liability and automobile liability policies. Coverage should also include a general liability, auto liability and workers' compensation waiver of subrogation provision in favor of the City of Victorville. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled with either party, reduced in coverage or in limits, except after thirty (30) days prior written notice, by certified mail return receipt requested, has been given to the City of Victorville. In the case of nonpayment, ten (10) days advance written notice shall be given.

(b) A business license issued by the city's business license division shall be subject to revocation for failure to comply with any of the conditions described above in Section 13.150.040(a), or for failure to comply with applicable provisions of Title 13 and Title 16 of this Code. The revocation of a business license shall be subject to the procedures set forth in Chapter 7, Article 2 of this Code, and the City shall also notify the State licensing authority of any delivery service operating in violation of this Section 13.150.040.

(c) The provisions of this Section 13.150.040 do not permit any temporary, persistent, or fixed physical presence to be established in the city for commercial cannabis activity besides delivery vehicles as described in this section in the active state of making a delivery.

(d) Nothing in this chapter shall prohibit any person from transporting cannabis through the jurisdictional limits of the city for delivery or distribution to a person located outside the city, where such transport does not involve delivery or distribution within the jurisdictional limits of the city, except as permitted herein.

(Ord. No. 2376, § 2, 11-7-17)

(a) Nothing in this chapter shall prohibit a person 21 years of age or older from engaging in the adult uses and personal cultivation of cannabis in accordance with California Health and Safety Code Sections 11362.1, 11362.2 and 11362.3, except that cultivation shall be subject to the local regulations set forth subsections (b) and (c) below. Cultivation of cannabis for medical purposes pursuant to Section 11362.77 of the California Health and Safety Code is also subject to these local regulations.

(b) Cultivation for personal use of six (6) or fewer live cannabis plants within a single private residence is permitted only to take place:

1. Indoors (as defined in Section 13.150.020 of this chapter); and

2. In residential zones of the city.

(c) The following additional local regulations shall apply to cultivation for personal use:

1. There shall be no exterior visibility or evidence of cannabis cultivation (including odors) outside the private residence, or outside a fully enclosed and secure structure located on the private residential parcel from the public right-of-way, a public place, or adjacent residence, including but not limited to any cannabis plants, equipment used in the growing and cultivation operation, and any light emanating from cultivation lighting.

2. No more than a total of six (6) cannabis plants, mature or immature, are permitted within a single private residence, or in a fully enclosed and secure structure located upon the grounds of such private residence, at one time.

3. Cannabis cultivated for personal use may not be sold.

4. Outdoor cultivation is not permitted.

(Ord. No. 2376, § 2, 11-7-17)

It shall be unlawful for any person or entity to cultivate cannabis in the City of Victorville that is not in conformity with the requirements stated in Victorville Municipal Code Section 13.150.050.

(a) A violation of this section may be prosecuted by the city attorney as set forth in Section 1.04.010 of Victorville Municipal Code.

(b) Any violation of this section is declared to be a public nuisance and the city may commence an action or actions or proceedings, for the abatement, removal and enjoinment thereof, in any manner provided by the law.

(c) A peace officer or code enforcement officer may issue an administrative citation and fine for the violation of this section as provided in Section 1.05 of the Victorville Municipal Code, without prior issuance of a Notice of Violation and in accordance with Government Code Section 53069.4(a)(2)(C), and the administrative fine amount for a violation of these sections shall be one hundred dollars per plant.

(d) After the issuance of an administrative citation for excess cannabis cultivation, if excess cultivation continues to occur on or at the property where administrative citation was previously issued, then a new administrative citation shall be issued and the administrative fine amount shall be one thousand dollars per plant for any excess cultivation occurring at the same location of a previously cited violation.

(e) Each and every day a violation of this section exists constitutes a separate and distinct violation.

(f) In addition to any administrative fine or penalty assessed for violation of this section, any person found in violation of this section will be charged actual abatement, administrative, and enforcement costs as defined in Sections 1.04.015 and 1.04.070, calculated to recover the total costs incurred by the city in enforcing this section.

(Ord. No. 2400, 12-17-2019)

(a) Any notice of violation, notice to correct or administrative citation issued to a property owner or its agent in conjunction with excess cannabis cultivation, including but not limited to violations of health, safety and building codes, shall be assessed an additional civil penalty of one thousand dollars per day for violations that are not corrected within the time period specified in the notice or citation.

(b) Any property upon which a violation of this section is found and an administrative citation issued shall cause the recording of a notice of pendency for the nuisance conditions with the San Bernardino County Assessors and Recorders Office.

(Ord. No. 2400, 12-17-2019)

The remedies provided in this chapter are not to be construed as exclusive remedies and, in the event of violation, the city may pursue any proceedings or remedies otherwise provided by law.

(Ord. No. 2400, 12-17-2019)

If the administrative fine or penalty, actual abatement, administrative, and enforcement costs and the cost of removal which are charged against the owner of a parcel of land pursuant to Sections 13.150.060 and 13.150.070 are not paid within thirty days of the date of the order, or the final disposition of an appeal therefrom, such costs may be assessed against the parcel of land pursuant to Section 38773.5 of the Government Code and may be transmitted to the tax collector for collection. Said assessment shall have the same priority as other city taxes.

(Ord. No. 2400, 12-17-2019)

City officials investigating the excess cannabis cultivation abatement matter shall keep an account of the cost of abatement on each separate lot or parcel of land where the work is done. After confirmation of an account report, a copy of the same shall be filed with the county auditor on or before August 10th. The descriptions of the parcels reported shall be those used for the same parcels on the county assessor's map book for the current year. The county auditor shall enter each assessment on the county tax roll opposite the parcel of land. The amount of the assessment shall be collected at the time and in the manner of ordinary municipal taxes. If delinquent, the amount is subject to the same penalties and procedures of foreclosure and sale provided for ordinary municipal taxes. As an alternative method, the county tax collector, in his discretion, may collect the assessments without reference to the general taxes by issuing separate bills and receipts for the assessments. Laws relating to the levy, collection and enforcement of county taxes shall apply to such special assessments.

(Ord. No. 2400, 12-17-2019)

(a) General penalty. In addition to any other penalties that may exist under state, federal, and local laws, a violation of any provision of this chapter or a failure to comply with any mandatory requirements of this chapter is subject to the enforcement mechanisms and penalties set forth in Chapters 1.04 and 1.05 of this Code. Notwithstanding the penalties set forth in Chapter 1.04 of this Code, this Chapter 13.150 does not authorize a criminal prosecution, arrest or penalty inconsistent with or prohibited by California Health and Safety Code Section 11362.71 et seq. or Section 11362.1 et seq., as the same maybe amended from time to time. In addition to any other remedy specified in this chapter, or otherwise provided at law or in equity, any mandatory provision of this chapter may be enforced by injunction issued by the courts upon a civil suit brought by the city.

(b) Public nuisance. The conduct of any activity or business in violation of this chapter is declared to be a public nuisance and the city may, in addition to all other remedies set forth hereunder, commence an action or actions or proceedings, for the abatement, removal and enjoinment thereof, in any manner provided by the law.

(c) Cost recovery. Administering departments are authorized to charge cost recovery fees for services provided under this chapter. Cost recovery fees may also be recovered for equipment and personnel expenses incurred. Said fees may be established from time to time by resolution of the city council.

(d) Other laws. Nothing in this chapter shall limit or preclude the enforcement of other applicable laws.

(Ord. No. 2376, § 2, 11-7-17; Ord. No. 2400, 12-17-19)

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. 2376, § 2, 11-7-17; Ord. No. 2400, 12-17-19)