Brentwood Updates Marijuana Ban, Prohibits Cultivation, Dispensaries and Deliveries

On Tuesday, the Brentwood City Council voted unanimously to prohibit marijuana cultivation, dispensaries and deliveries within the City of Brentwood.

The city now joins Contra Costa County, along with the cities of Antioch and Pittsburg with also have a prohibition of marijuana cultivation, dispensaries and deliveries within city limits. Meanwhile, Oakley has a similar ordinance, however they opted to allow deliveries within city limits.

By law, however, neither the county, nor city ordinances may prevent people from growing up to six-plants in their home residents.

Damien Brower, City Attorney, explained how Brentwood currently has policies in place that ensure the maximum local control allowed under State Law  which prohibited marijuana cultivation, dispensaries and deliveries within the City of Brentwood.

Similar to the 2016 ordinances, the ordinance before the council which regulates land use and personal use (behavior), the proposed changes also aim to ensure the most local control possible under state law while accounting for Proposition 64.

“The two ordinances update the terminology  update definitions put in with Proposition 64 and continue to prohibit marijuana cultivation with the exception of the indoor cultivation of 6-plants, prohibit medical marijuana facilities and continue to prohibit most deliveries,” explained Brower. “Much of this is continuation of the rules that are already in place.”

Councilwoman Karen Rarey encouraged the Ordinance be passed to maintain local control, she noted a lot of the data was outdated and there had been reversals from original opinions

“I’d like us to ask staff if they could conduct a white paper of our own including the pros and cons of cultivation, the manufacturing of cannabis, products within our city limits and what other jurisdictions are doing and how what those jurisdictions are doing impact us,” stated Rarey. “There is a lot of tax incentives or income to be made. In 2020, the State of California will generate $7.6 billion in revenue from the sale of cannabis. We need to look into what planning and permitting would be, what the tax and compliance would be. There is a lot of things we don’t have answered here.”

Vice Mayor Joel Bryant added he would like the City to gather information from the State of Colorado.

“I’d like to be made aware of the pros and cons, the costs, the medical costs and enforcement costs. As well as the other unintended effects it has had in implementing this,” said Bryant. “I have a lot of concerns, I will say in our city; one of my greatest concerns is that it is a cash only business. It’s against Federal Law, the State of California has approved its limited supply, in the city of Brentwood we have already had some very violent interactions of people who had illegal grows.”

Bryant added the City has experienced break ins and people pistol whipping people.

“I would like more information as to what the pros and cons are and we have a good resource in the State of Colorado,” said Bryant.

Mayor Taylor suggested they would take up the “white paper” issue at a future meeting.

The council then voted 5-0 to approve the ordinance. No one from the public spoke on the item.

Here is a look at the language in the Brentwood Staff Report:

An ordinance of the City Council of the City of Brentwood repealing chapter
17.780 (Medical Marijuana Facilities) and replacing it in its entirety with a new Chapter 17.780 (Marijuana Facilities and Cultivation) of the Brentwood Municipal Code to prohibit marijuana cultivation, dispensaries and deliveries within the City of Brentwood; and a related Ordinance of the City of Brentwood repealing Brentwood Municipal Code Chapter 9.50 (Medical Marijuana Facilities) and replacing it in its entirety with new Brentwood Municipal Code Chapter 9.50 (Marijuana Facilities and Cultivation)

BACKGROUND
Current Ordinances under the Medical Cannabis Regulation and Safety Act
On October 9, 2015, Governor Brown signed into law three related bills pertaining to the regulation of marijuana; AB 243, AB 266 and SB 643. These bills are collectively known as the Medical Cannabis Regulation and Safety Act (“MCRSA”)1. The MCRSA creates a joint regulation and permitting scheme comprised of state law and local ordinances, governing the cultivation, testing, and distribution of medical marijuana, and physician recommendations for medical marijuana. MCRSA is intended to govern all commercial cannabis activities, which are defined as “cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product.” Under MCRSA, all medical marijuana businesses, or commercial cannabis activities, must have both a state license and local permit, license, or other authorization in order to operate lawfully within California. (Bus. & Prof. Code § 19320(a).)

As required by the MCRSA to maintain some degree of local control over medical marijuana regulation, the City adopted two ordinances on January 26, 2016. (See BMC Chapters 9.50 and 17.780.) These ordinances prohibit “commercial cannabis activities,” which are defined under State law as medical marijuana businesses that require a state licenses under MCRSA, including medical marijuana manufacturers, distributors, transporters, and testing laboratories. In addition to commercial cannabis activities, the ordinances prohibit marijuana cultivation, dispensaries and deliveries (except for those deliveries made by a primary caregiver to his or
her qualified patients) within city limits.

ORDINANCES: DESCRIPTION AND ANALYSIS
The AUMA states expressly that “marijuana is an agricultural product.” (Bus. & Prof. Code § 26067(a).) In addition, the AUMA specifically describes recreational marijuana dispensaries as “retailers.” (Bus. & Prof. Code § 26070.) In Brentwood, agricultural land uses and retail uses are permitted by right in certain zoning districts; therefore, maintaining the current prohibitions on commercial marijuana activities and personal cultivation of marijuana to the extent allowable under the AUMA will require express provisions in the Municipal Code. The proposed ordinances include such provisions in two key policy areas: commercial marijuana activities and personal cultivation

Commercial Marijuana Activities
The proposed ordinances maintain the City’s existing prohibition against medical marijuana dispensaries, commercial cannabis activities, and marijuana cultivation facilities. In addition, the ordinances extend the current prohibition to cover the recreational marijuana businesses now recognized under the AUMA. Under the new ordinances, the City would continue to prohibit all commercial marijuana businesses throughout the City.

Personal Cultivation
BMC § 9.50.040 and § 17.780.040 currently prohibit all marijuana cultivation in the City, including private indoor and outdoor cultivation. The proposed ordinances continue this policy regarding private marijuana cultivation to the extent allowable under the AUMA, which provides that cities can no longer completely ban indoor cultivation of six marijuana plants or fewer. Cities may impose reasonable safety regulations, however, and the attached revision of both § 17.780.040 and § 9.50.040 require compliance with specific restrictions related to safety. Both proposed sections of the Code provide as follows: No person or entity may cultivate marijuana at any location in the City, except that a person may cultivate marijuana plants inside his or her private residence, or inside an accessory structure to his or her private residence located upon the grounds of that private residence that is fully enclosed and secured against unauthorized entry, provided that the owner of the property provides written consent expressly allowing the marijuana cultivation to occur, the person conducting the marijuana cultivation complies with all applicable Building Code requirements set forth in Title 8 of the Municipal Code, there is no use of gas products (including, but not limited to CO2, butane, propane, and natural gas) on the property for purposes of marijuana cultivation, and the marijuana cultivation complies with Health and Safety Code section 11362.2(a)(3). Not more than six living plants may be planted, cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, at one time

As noted above, these ordinances contain virtually identical provisions. The difference is that the Zoning Ordinance under Title 17 regulates the use of land and will generally be enforced by Code Enforcement, while the Title 9 Ordinance regulates personal behavior and will generally be enforced by the Police Department.

FISCAL IMPACT
It should be noted that there are some tax incentives built into the AUMA to legalize recreational and medical marijuana dispensaries within a city’s borders. Cities that do allow such dispensaries in their jurisdictions will, for example, receive a share of the revenue generated by state taxes on marijuana sales. Cities may also impose their own taxes on such sales.

It cannot, however, be demonstrated that the tax revenues associated with such sales would exceed the cost of enforcing the regulations and laws associated with such sales. Marijuana sales for both medical and recreational use remain illegal under Federal Law. As such, banks are effectively prohibited from participating in marijuana businesses in the State. Marijuana businesses remain cash-only, and transactions are difficult to track for the purposes or taxation.

Should these ordinances be introduced and adopted, the City Council is not precluded from revisiting this issue after more information is known about their impacts on cities that permit such activities, in whole or in part.