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Berkeley, CA City Council Zoning Ordinance on Medical Marijuana Dispensaries
Passed, November 18, 1997
AMENDING "BERKELEY" ZONING ORDINANCE NO. 3018 - N.S. TO REGULATE THE
ESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. New Chapter Added to Zoning Ordinance
Ordinance 3018 - N.S. is amended by adding Chapter 15C to read as follows:
Chapter 15C. MEDICAL MARIJUANA DISPENSARIES.
Section 15C.1 Purpose and Findings.
A. Due to the fact that all distribution of marijuana was previously illegal, it has never been allowed within the provisions of the City's Zoning Ordinance.
B. The voters of the State of California overwhelmingly affirmed the medical use of marijuana by voting for Proposition 215 (codified as Health & Safety Code Section 11362.5). The intent of this Proposition was to enable persons who are in of medical need of marijuana to be able to obtain and use it without fear of criminal prosecution. The specific purposes of this Chapter are to safeguard the urban environment by permitting compliance with state law in a manner consistent with neighborhood concerns.
Section 15C.2 Definitions.
A. "Medical Marijuana Dispensary" is a
facility where marijuana
is made available for medical purposes in
accordance with
Health and Safety Code Section 11362.5
(Proposition 215), in
return for consideration.
"Medical Marijuana Dispensary" also
includes establishments from which
marijuana is delivered to
patients who cannot obtain it from a
dispensary due to physical
or mental disability, for medical
purposes in compliance with
Health and Safety Code Section 11362.5
(Proposition 215).
B. "Consideration" includes, but is not limited
to, money, barter,
membership, labor, or any other exchange
whereby the
dispensary receives something of value
from a patient or any
person on behalf of a patient.
C. "Patient" means any person permitted to
cultivate and/or
consume marijuana for medicinal purposes
pursuant to Health
and Safety Code Section 11362.5
(Proposition 215).
Section 15C.3 No Nonconforming Uses.
No use which purports to have distributed marijuana prior to the
enactment of this Chapter shall be deemed to have been a legally
established use under the provisions of the Zoning Ordinance and
such
use shall not be entitled to claim legal nonconforming status.
Section 15C.4 Use Permit Required In All Cases.
A. No person may operate, or allow or suffer the operation
of, a
Medical Marijuana Dispensary except in
compliance with the
standards and requirements of this
Chapter, and pursuant to a
Use Permit issued pursuant to this
Chapter and under the
standard set forth in section 20.2 of
this Ordinance; except that
pharmacies as defined in Business and
Professions Code
section 4037 may make marijuana available
for medical
purposes in accordance with Health and
Safety Code Section
11362.5 (Proposition 215) without
obtaining a Use Permit.
B. Medical Marijuana Dispensaries shall not be allowed as
home
occupations.
Section 15C.5 Reserved
Section 15C.6 Allowed Districts.
A. Medical Marijuana Dispensaries may be permitted in all
Zoning
Districts except the R-1, R1-A, R-2,
R2-A, R-3, R-4 R-5 and
ES-R Districts.
B. Medical Marijuana Dispensaries may be permitted in the
R-1,
R1-A, R-2, R2-A, R-3, R-4, R-5 and ES-R
Zoning Districts if
they are located on the premises of a
church or other religious
institution which qualifies as such under
section 501 of the
Internal Revenue Code and are otherwise
in compliance with
the requirements of this Chapter.
Section 15C.7 Locational Requirements.
A. No Medical Marijuana Dispensary may be located closer
than
three hundred (300) feet from any school
containing students
in any grade from kindergarten through
twelfth grade, or park.
B. Distance shall be measured from the building which
contains
the Medical Marijuana Dispensary to the
property line of the
enumerated use using the most direct
vehicular or pedestrian
access route or public right-of-way,
whichever is shorter.
Section 15C.8 Standards for Medical Marijuana Dispensaries.
A. Medical Marijuana Dispensaries shall be operated in
compliance with the provisions of Health
and Safety Code
Section 11362.5.
B. Smoking or consumption of medical marijuana shall be
allowed on the site of the Dispensary,
provided that both of the
following conditions are met.
1. Any on-site consumption by
smoking shall be in a fully
enclosed,
separately ventilated room which is separate
from the
other areas of the dispensary, and which is
vented
directly to the exterior of the building.
2. The Dispensary shall
ensure that no person who has
consumed
medical marijuana on-site is allowed to leave
the
premises if he/she is in a condition that may cause a
hazard to
his or her self or others.
C. No patients under the age of 18 (eighteen) shall be
permitted in
the Dispensary at any time except in the
presence of his/her parent or guardian.
D. No retail sales of paraphernalia as defined in Health
and Safety
Code section 11364.5 are permitted at the
Dispensary, except
to patients or their designees.
E. The Dispensary shall be operated in compliance with
regulations the City may issue regarding
security measures,
record keeping, proper identification for
patients, delivery of
medical marijuana by employees of the
Medical Marijuana
Dispensary to patients who would
otherwise not be able to
obtain it from a dispensary by reason of
physical or mental
disability, storage of marijuana on the
site, on-site cultivation
and the maximum amount that may be
dispensed in any single
transaction. Such regulations may
be modified from time to
time as the City deems appropriate.
The Planning Commission
shall be consulted in the drafting and
issuance of any
regulations.
F. Cultivation of medical marijuana in a Medical Marijuana
Dispensary is only allowed if
specifically authorized by a Use
Permit, except as set forth in section
15C.4.
G. Reserved.
H. Each Dispensary shall display in a manner legible and
visible to
its clientele:
1. Notice that Patients under
the age of 18 (eighteen) are
not allowed
in the Dispensary except in the presence of
his/her
parent or guardian;
2. Reserved; and
3. A request that there be no
consumption of medical
marijuana
in the vicinity of the Dispensary.
I. Only operators and their employees, patients, parents or
guardians of patients under 18 years of
age, and their
designees may be permitted to enter a
Medical Marijuana
Dispensary for the purpose of obtaining
medical marijuana or
other goods or products associated with
its use.
Section 2. Reserved.
Section 3. Environmental Review.
The City Council hereby finds that approval of this ordinance is
exempt from environmental review because it can be seen with certainty that there is
no possibility that it could have a significant effect on the environment, in particular
because it
adopts regulations which will ensure that Medical Marijuana Dispensaries will be
compatible with the
areas in which they locate and will have no detrimental effects on those neighborhoods or
the City.
Section 4. Posting
Copies of this Bill shall be posted for two (2) days prior to adoption
in front of the Civic Center Building. Within fifteen (15) days of adoption, copies
of this Ordinance shall be filed at each branch of the Berkeley Public Library and the
title shall be published in a newspaper of general circulation.
Approved as to form:
___________________
City Attorney
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