City of Brentwood Finalizes Marijuana Ban

On Tuesday night, the Brentwood City Council unanimously voted to approve a further increase of its prohibition on the use of marijuana within city limits.

While the current ordinance prohibits medical marijuana dispensaries and the growth of marijuana, under the Ordinance approved Tuesday, it now bans medical marijuana delivery unless the deliveries or transport of medical marijuana is by a patients primary caregiver as defined by state law.

None of the City Council members spoke on the agenda item after public comments were issued in support of marijuana by activists.

Editors Note: Mayor Bob Taylor had public comments on this agenda item occur during “Public Comments” versus on the Agenda Item since it was in the Consent Calendar.

Original Article & Background Information

The ordinances changes that were being proposed are in response to Governor Jerry Brown signing AB 243, AB 266 and SB 643 pertaining to Medical Marijuana which provide a permitting process to grow marijuana.

AB 243, takes away local control over licensing for media marijuana cultivation within a city unless a city has its own land use regulation ordinance by January 29, 2016—the ordinance must be in place by March 1, 2016. If Brentwood fails to act, the State will become the sole licensing authority for medical marijuana cultivation applications within the Brentwood city limits.

If Brentwood did not act, under state law, the State may approve an applicant whom could begin to grow medical marijuana which is 6-mature plants or 12-immature plants.

Brentwood is proposing a further prohibition on the use of marijuana.

Per the Staff Report:

Currently, medical marijuana dispensaries are defined in Section 9.50.020 of the Brentwood Municipal Code (“BMC”) as “any facility or location, whether fixed or mobile, where medical marijuana is provided, sold, made available, or otherwise distributed to one or more of the following: a primary caregiver, a qualified patient or a person with an identification card.” BMC Section 9.50.030 prohibits medical marijuana dispensaries and provides that “The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a medical marijuana dispensary.”

The proposed ordinances expand this prohibition to apply to other uses of marijuana, including establishment and operation of medical marijuana dispensaries, marijuana cultivation, commercial cannabis activities, and delivery or transport of marijuana. It should be noted, however, that the ordinances also include some state-mandated exceptions to the prohibited activities. Specifically, the prohibition on Medical Marijuana Dispensaries does not apply to any of the following:

1.  A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code;
2. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code;
3. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code;
4. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code;
5. A residential hospice or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code.

The above exceptions will apply as long as (1) the location of such uses are otherwise regulated by this Code or applicable law and (2) any use of marijuana complies strictly with applicable law including, but not limited to, Health and Safety Code § 11362.5 et seq.

In addition, the proposed ordinances do not prohibit deliveries or transport of medical marijuana to a qualified patient or person with an identification card, as allowable under the California Health and Safety Code section 11362.7, if the person delivering the marijuana is the primary caregiver within the meaning of Health and Safety Code sections 11362.5 and 11362.7(d).

The language of the two proposed ordinances is virtually identical. The difference between them lies in the enforcement. The Zoning Ordinance regulates the use of land and is generally enforced by the City’s code enforcement staff against private property owners who violate the ordinance or allow their tenants to violate the ordinance. By contrast, the Title 9 Ordinance regulates personal behavior, and it will be enforced by the Brentwood Police Department against anyone who violates the ordinance, whether on public or private property.

The City Council took up the action after the Brentwood Planning Commission took up the item at their December 15, 2015 meeting. At that meeting, Brentwood Police Detective Matthew Head presented the need for local control of marijuana facilities, the excessive “grow areas” allowable under State Law, recent law enforcement activity pertaining to grow houses, fire hazards associated with grow houses, and odor complaints and other nuisances and health hazards associated with commercial marijuana activities.

The Police Department explained to the Planning Commission that it has also seen increased property crimes, assaults, and home invasions associated with grow houses. The Commission unanimously recommended that the Council adopt the Zoning Ordinance.

Since 2006, the City of Brentwood has prohibited medical marijuana dispensaries.