Ord 2263 - Amending Chapter 14, Article XII, Section 14.120.010-14.120.030 Prohibiting the Establishment of Any Form of Marijuana Commerce, Trade or Industry, & Prohibiting Commercial Cultivaton, Processing & Delivery of MarijuanaORDINANCE 2263
AN ORDINANCE OF THE TOWN OF LOS GATOS AMENDING LOS GATOS MUNICIPAL
CODE CHAPTER 14, ARTICLE XII , SECTION 14.120.010 — 14.120.030 PROHIBITING
THE ESTABLISHMENT OF ANY FORM OF MARIJUANA COMMERCE, TRADE OR
INDUSTRY, AND PROHIBITING COMMERCIAL CULTIVATION, PROCESSING AND
DELIVERY OF MARIJUANA
WHEREAS, on August 15, 2011, the Town Council adopted Ordinance No. 2198 adding
Chapter 14 Article XII prohibiting medical marijuana dispensaries in the Town; and
WHEREAS, on February 16, 2016, the Town Council adopted Ordinance No. 2251,
amending Chapter 14, Article XII, prohibiting marijuana cultivation and delivery of marijuana; and
WHEREAS, on November 8, 2016, the voters of the State of California passed and
approved Proposition 64, which added or amended sections 11018, 11362.1, 11362.2, 11362.3,
11362.4, and 11362.45 in the California Health & Safety Code to legalize and regulate in the State
of California the possession, use, and cultivation of marijuana for recreational (non - medical)
purposes, with such new and amended statutes taking effect January 1, 2017; and
WHEREAS, Section 11362.2(b) of the California Health & Safety Code allows a Town to
enact and enforce reasonable regulations to reasonably regulate the possession, cultivation and
use of marijuana or marijuana products within the local jurisdiction, where such local regulation
does not completely prohibit the possession, planting, cultivation, harvesting, drying, or
processing of not more than six living marijuana plants and possessing the marijuana produced
by such plants when such activity occurs within a person's own private residence; and
WHEREAS, Section 11362.2(b) of the California Health & Safety Code further allows a
Town to enact and enforce regulations to prohibit the possession, planting, cultivation,
harvesting, drying, or processing of marijuana plants, and possessing the marijuana produced by
such plants, regardless of the number of plants, when such activity occurs outdoors or otherwise
outside of a fully enclosed and secure structure at a person's own private residence; and
WHEREAS, the proposed Code Amendment establishes regulations concerning the
possession, cultivation and use of marijuana consistent with California Health & Safety Code
Sections 11362.1, 11362.2, 11362.3, 11362.4, and 11362.45; and
WHEREAS, it remains in the best interest and general welfare of the citizens of Los Gatos
to minimize potential safety threats to the community by continuing to prohibit within the Town
any activity or enterprise involving marijuana or marijuana products which remain illegal under
Federal law and which are not expressly identified in California law as being legal.
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NOW THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS
FOLLOWS:
SECTION 1. CODE AMENDMENT
Chapter 14 (Licenses and Miscellaneous Business Regulations), Article XII (Medical Marijuana
Dispensaries), of the Los Gatos Town Code is hereby amended and re- written in its entirety, as
follows:
CHAPTER 14, ARTICLE XII
CULTIVATION AND USE OF MARIJUANA
Section 14.120.010. - Purpose.
(a) The purpose of this Section is to expressly prohibit commercial marijuana activity in the Town.
Nothing in this Section shall preempt or make inapplicable any provision of State or Federal law.
(b) Business and Professions Code Section 19320(a) provides that a person must hold both a
State and local license to engage in commercial medical marijuana activity. Business and
Professions Code Section 26055(e) provides that a State licensing authority shall not approve an
application for a State license for a non - medical marijuana business if approval of the State
license will violate the provisions of any local ordinance. Business and Professions Code Section
19340(a) provides that deliveries of marijuana can only be made in a Town that does not
explicitly prohibit it by local ordinance.
(c) Health and Safety Code section 11362.2(b) provides that a Town may enact and enforce
reasonable regulations on marijuana cultivation activities. Health and Safety Code Section
11362.2(b) also authorizes a Town to completely prohibit persons from cultivating marijuana
outdoors upon the grounds of a private residence.
(d) The Town Council finds that a prohibition on all commercial marijuana activity and marijuana
deliveries is necessary for the preservation and protection of the public health, safety, and
welfare for the Town and its community. The Town Council's prohibition of such activity is within
the authority conferred upon the Town Council by State law and is an exercise of its police
powers to enact and enforce regulations for the public benefit, safety, and welfare of the Town
and its community.
(e) The Town Council finds that a prohibition of all outdoor residential cultivation and the
application of reasonable regulations on indoor residential cultivation is necessary for the
preservation and protection of the public health, safety, and welfare for the Town and its
community. The Town Council's regulation of such activity is within the authority conferred upon
the Town Council by State law and is an exercise of its police powers to enact and enforce
regulations for the public benefit, safety, and welfare of the Town and its community.
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Ordinance 2263 November 7, 2017
Section 14.120.015. - Definitions.
(a) "AUMA" shall mean the Control, Regulate and Tax Adult Use of Marijuana Act approved by
the voters on November 8, 2016, as the same may be amended from time to time.
(b) "Commercial marijuana activities" includes the cultivation, possession, manufacture,
distribution, processing, storing, laboratory testing, labeling, transportation, distribution,
delivery, trade or sale of marijuana and marijuana products by any person, entity, commercial or
business enterprise, whether for medical or nonmedical purposes and whether for - profit or
nonprofit. "Commercial marijuana activities" also includes the activities of any business licensed
by the State or other government entity under Chapter 3.5 of Division 8 or Division 10 of the
Business and Professions Code, as they may be amended from time to time.
(c) "Delivery" means the commercial delivery, transfer or transport, or arranging for the delivery,
transfer or transport, or the use of any technology platform to arrange for or facilitate the
commercial delivery, transfer or transport of marijuana or marijuana products to or from any
location within the Town.
(d) "Distribution" shall mean the procurement, sale, and transport of marijuana and marijuana
products between entities licensed under Chapter 3.5 of Division 8 or Division 10 of the Business
and Professions Code, as they may be amended from time to time.
(e) "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.
(f) "Marijuana" is defined as the term is defined in California Health and Safety Code Section
11018 as that section may be amended from time to time.
(g) "Marijuana Cultivation" or "Cultivation" means the planting, growing, harvesting, drying or
processing of marijuana plants or any part thereof, and any and all associated business or
operational activities.
(h) "Marijuana Products" is defined as the term is defined in California Health and Safety Code
Section 11018.1 as that section may be amended from time to time.
(i) "MCRSA" shall collectively mean the Medical Cannabis Regulation and Safety Act as contained,
codified, enacted, and signed into law on October 9, 2015, as Assembly Bill No. 243, Assembly Bill No. 266,
and Senate Bill 643, and as amended by Assembly Bill 21 in 2016, as the same may be amended from time
to time. The MCRSA was formerly known as the Medical Marijuana Regulation and Safety Act.
(j) "Primary caregiver" is defined as that term is defined in California Health and Safety Code
Section 11362.7, subdivision (d), as that section may be amended from time to time.
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(k) "Qualified patient" means a seriously ill person who obtains a written recommendation from a
physician licensed to practice medicine in the state of California to use marijuana for personal
medical purposes. In addition, persons currently under the care of a physician for a "serious
medical condition" as that term is defined in California Health and Safety Code Section 11362.7,
subdivision (h), are presumed to be qualified patients.
Section 14.120.020. - Prohibited activities involving marijuana or marijuana products.
The following activities involving marijuana or marijuana products are prohibited and may not be
conducted anywhere in the Town:
(a) Commercial marijuana activities is expressly prohibited everywhere in the Town. No person or
entity shall establish, operate, maintain, conduct, allow or engage in commercial marijuana
activities anywhere within the Town. The Town shall not approve any application for a business
license or any other permit or entitlement authorizing the establishment, operation,
maintenance, development, or construction of any business that engages in commercial
marijuana activities.
(b) A property owner shall not rent, lease or otherwise permit any business that engages in
commercial marijuana activities to occupy real property in the Town. A property owner shall not
allow any person or business to establish, operate, maintain, conduct, or engage in commercial
marijuana activities on any real property owned or controlled by that property owner that is
located in the Town.
(c) Subsection (a) above is meant to prohibit all activities for which a State license is required
pursuant to the MCRSA or the AUMA. The Town shall not issue any permit, license or other
entitlement for any activity for which a State license is required under the MCRSA or the AUMA.
The Town shall also not issue any local license to a non - profit entity pursuant to Business and
Professions Code Section 26070.5.
(d) To the extent not already prohibited by subsection (a) above, all deliveries of marijuana or
marijuana products to or from any location in the Town for any purposes is expressly prohibited.
No person shall conduct or perform any delivery of any marijuana or marijuana products, which
delivery either originates or terminates within the Town.
Section 814.120.025. — Exceptions.
(a) Possession or cultivation of marijuana on private residential property strictly for the personal
use and benefit of one or more residents on the property, where the marijuana cultivation and
related activities are non - commercial and occur entirely within the confines of a fully enclosed
and secure primary dwelling unit, or within a fully enclosed and secure accessory structure
thereto, in compliance with section 17.12.125 of Title 17 of this Code and compliant with the
limits and requirements established under California Health and Safety Code Sections 11362.1,
11362.2, 11362.3, 11362.4, and 11362.45 and any other applicable state laws.
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(b) Delivery or transport of marijuana within the Town by a person or entity licensed to provide
such transport or delivery service by the California Department of Consumer Affairs and by the
California Bureau of Marijuana Control, where such delivery service is accomplished via public
roadways, does not originate or finish from a location within the Town pursuant to Business and
professions Code Section 19340(f), and conforms to the parameters and limitations established
by California Health and Safety Code Sections 26080 and 26090 and any other applicable state
laws.
(c) Possession or cultivation of marijuana or marijuana products for personal medical use by a
qualified patient, consistent with a physician's recommendation, and conducted by the qualified
patient or his or her primary caregiver in accordance with the parameters and limitations set out
in Sections 11362.5 and Sections 11362.7 through 11362.83 of the California Health and Safety
Code and any other applicable state laws.
(d) The personal use or cultivation of marijuana or marijuana products as allowed under sub-
sections (a) and (c) in this section shall be conducted within a fully enclosed and secure structure
which does not permit visual or olfactory evidence of cultivation detectable from the public right -
of -way, and shall not:
1. Displace any space used for required on -site parking of a motor vehicle.
2. Utilize lighting that exceeds one thousand two hundred (1,200) watts.
3. Utilize an electric generator.
4. Utilize gas products including, but not limited to, carbon dioxide, butane, or flammable
gas.
Section 14.120.030. - Limits to Criminal Liabilities.
No conduct which is protected from criminal liability pursuant to the Control, Regulate and Tax
Adult Use of Marijuana Act (California Health and Safety Code, §§ 11362.1, 11362.2, 11362.3,
11362.4, and 11362.45), the Compassionate Use Act (Health and Safety Code, § 11362.5) and the
Medical Marijuana Program Act (Health and Safety Code, §§ 11362.7 through 11362.83) shall be
made criminal by this Code. Conduct or uses which violate the requirements of this section are a
nuisance, and shall be subject to noncriminal remedies, including, but not limited to,
administrative citations and abatement.
SECTION 2. CONSTRUCTION
The Town Council intends this Ordinance to supplement, not to duplicate or contradict,
applicable state and federal law and this Ordinance shall be construed in light of that intent. To
the extent the provisions of the Los Gatos Municipal Code as amended by this Ordinance are
substantially the same as the provisions of that Code as it read prior to the adoption of this
Ordinance, those amended provisions shall be construed as continuations of the earlier
provisions and not as new enactments.
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SECTION 3. CEQA
The Town Council finds and determines that the adoption of this ordinance is exempt from the
requirements of the California Environmental Quality Act (CEQA) per CEQA Guidelines under the
General Rule (Section 15061(b)(3)), which sets forth that the CEQA applies only to projects which
have the potential for causing a significant effect on the environment. It can be seen with
certainty that the proposed Town Code text amendments will have no significant negative effect
on the environment.
SECTION 4. SEVERABILITY
If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held by a
court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the
remaining portions of this ordinance. The Town Council of the Town of Los Gatos hereby declares
that it would have passed this ordinance and each section or subsection, sentence, clause and
phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences,
clauses or phrases be declared invalid. Except as expressly modified in this Ordinance, all other
sections set forth in the Los Gatos Town Code shall remain unchanged and shall be in full force
and effect.
SECTION S. EFFECTIVE DATE
This ordinance shall take effect immediately and will be enforced thirty (30) days after its
adoption.
SECTION 6. PUBLICATION AND POSTING
In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a
summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days
after adoption by the Town Council and a certified copy shall be posted in the office of the Town
Clerk, pursuant to GC 36933(c)(1).
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SECTION 7. INTRODUCTION AND ADOPTION
This Ordinance was introduced at a regular meeting of the Town Council of the Town of Los
Gatos on the 17th day of October, 2017 and adopted by the following vote as an ordinance of the
Town of Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on the 7th
day of November, 2017.
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF TH TOWN OS GATOS
LOS GATOS, C IA
DATE: I -a I�
ATTEST:
CLERK ADMINISTRATOR 1 OF `T E TOWN OF LOS GATOS
LOS GATOS, CAL ORNIA
DATE:
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