Pursuant to Carlsbad Municipal Code (“CMC”) Chapter 8.90 “Cannabis,” the City of Carlsbad prohibits commercial marijuana activities except as allowed under federal law (primarily medical research activities). The CMC prohibits delivery within Carlsbad and restricts the cultivation of cannabis as described in CMC Section 8.90.030(c). Violations of these laws constitutes a misdemeanor.
In 2017, a citizens initiative was submitted to the city, proposing to legalize certain commercial marijuana activities in Carlsbad. The initiative failed to submit the required number of signatures to qualify for the ballot. Therefore, CMC Chapter 8.90 remains the governing law on commercial marijuana activities in Carlsbad.
What is the state law?
The Adult Use of Marijuana Act started as a citizens initiative in the state of California and was included on the Nov. 8, 2016, ballot as Proposition 64. It passed with 57 percent of the vote and most of its provisions took effect Nov. 9, 2016. This law:
Legalizes the nonmedical use of marijuana by persons 21 years of age and over and the personal cultivation of six marijuana plants
Creates state regulatory and licensing system for the commercial cultivation, testing, and distribution of nonmedical marijuana, and the manufacturing of nonmedical marijuana products
Allows local governments to prohibit or regulate and license commercial nonmedical marijuana
If commercial marijuana activities weren’t previously allowed in Carlsbad, why did the city change its laws and enact CMC Chapter 8.90?
The change in wording is recommended due to three recently passed state laws. The Medical Marijuana Regulation and Safety Act, effective Jan. 1, 2016, the Adult Use of Marijuana Act, effective Nov. 8, 2016, and the Medicinal and Adult-Use Cannabis Regulation and Safety Act, effective June 27, 2017, created regulations and licensing requirements for marijuana growing, sales and use. The state laws give cities the authority to prohibit commercial marijuana activities. To preserve local control over this issue and prevent the state from issuing licenses for marijuana businesses to operate in Carlsbad, the City Council is required to change the language in its municipal code to expressly prohibit those activities.
What cities have enacted local laws prohibiting or restricting marijuana?
Within the County of San Diego, most jurisdictions ban all commercial marijuana activity, including cultivation, processing delivery and dispensaries:
County of San Diego
These cities allow limited commercial activities:
La Mesa (medical marijuana cultivation, processing, and dispensaries)
Lemon Grove (medical marijuana dispensaries)
Oceanside (medical marijuana delivery)
City of San Diego (medical and recreational dispensaries)
What’s the difference between Proposition 64 and the medical marijuana law passed in 2015?
The 2015 law regulates medical marijuana. This one regulates non-medical marijuana. Specifically, the Adult Use of Marijuana Act allows:
AGE: 21 years or older
POSSESSION: May possess, process, transport, purchase, obtain, or give away
28.5 grams of non-concentrated non-medical marijuana or 4 grams of concentrated marijuana products
USE: May smoke or ingest marijuana or marijuana products
CULTIVATION: May possess, plant, cultivate, harvest, dry or process up to six plants per residence for personal use
Both the medical marijuana law and the non-medical law allow local governments to regulate or prohibit commercial marijuana businesses within their jurisdictions.
What use is not allowed?
No smoking in a public place
No smoking where smoking tobacco is prohibited
No smoking within 1,000 feet of a school, day care center or youth center
No smoking while driving or riding in a vehicle
Cities may prohibit smoking and possession in buildings owned, leased, or occupied by the city
Employers may maintain drug-free workplaces
What does the law say about marijuana businesses?
Cities/counties may regulate or completely prohibit state-licensed marijuana businesses (recreational and medical) but may not prohibit use of public roads for deliveries in other jurisdictions
State standards are minimum standards
Cities/counties may establish additional standards, regulations for health and safety, environmental protection, testing, security, food safety and worker protections
What are people allowed to grow?
Local governments may “reasonably regulate” but not prohibit personal indoor cultivation of up to six marijuana plants within a private residence
Includes cultivation within a greenhouse or other structure on the same parcel of property that is not visible from a public space
Local governments may regulate or prohibit personal outdoor cultivation
Can people grow non-medical marijuana at home?
Yes, within a private residence by a person 21 years and older for personal use. The new law provides that local governments can reasonably regulate, but cannot ban the personal indoor cultivation of up to six nonmedical marijuana plants per private residence. This includes cultivation in a greenhouse that is on the property of the residence but not physically part of the home, as long as it is fully enclosed, secure and not visible from a public space.
Is there a limitation on the number of marijuana plants that can be cultivated within a single residence?
Yes. 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. A “residence” is defined as a house, an apartment unit, a mobile home or other similar dwelling. No matter how many persons over 21 years of age are living in a “residence,” only six living plants may be cultivated at one time.
Can a landlord ban the cultivation/smoking of marijuana?
Yes. An individual or private entity may prohibit or restrict personal possession, smoking, and cultivation of marijuana on the individual’s or entity’s privately owned property. A state or local government agency also may prohibit or restrict such activities on property owned, leased, or occupied by the state or local government.
Does enacting laws restricting or banning growing or sales make cities ineligible for certain state grants?
Yes. Cities banning commercial marijuana activities are not eligible for state grants using money generated from the state tax on marijuana. This money may only be used for law enforcement, fire protection or other local programs addressing public health and safety associated with the implementation of a statewide law allowing adult use of marijuana.
What does the new law say about possession, transporting, purchasing or giving away of non-medical marijuana?
A person 21 years of age or older may possess, process, transport, purchase or give away to persons 21 years of age or older not more than 28.5 grams of marijuana in the non-concentrated form and not more than 4 grams of marijuana in a concentrated form, including marijuana products. These activities are lawful under state law and cannot be prohibited under local law.
Can cities ban deliveries?
Yes. Cities can ban deliveries within their territorial limits. However, cities cannot prevent the use of public roads for the delivery of marijuana. For example, if a licensed delivery company located in City A must travel on public roads through City B to make an authorized delivery in City C, City B cannot prohibit the licensed delivery company from travelling on public roads in City B to get to City C. In addition, cities may not prevent the use of public roads within its jurisdiction to transport nonmedical marijuana.
What’s the difference between marijuana and cannabis?
Although used interchangeably under state law, the word cannabis generally refers to the plant or plant type. Marijuana typically refers to the seeds, leaves and flowers of the plant. THC, or tetrahydrocannabinol, is the chemical compound in cannabis plants that affects the brain and central nervous system to produce psychoactive effects. The flowers tend to have the greatest concentration of THC. The State of California recently changed the terminology used from marijuana to cannabis, although federal law still primarily uses the word “Marijuana.”
Is commercial activity related to cannabinol (CBD) oil permitted in the City of Carlsbad?
No. Whether the CBD oil is sourced from cannabis or hemp, federal law classifies CBD as a controlled substance. Specifically, the U.S. Dept. of Justice has found that CBD qualifies as a Schedule 1 controlled substance, the same as cannabis itself. Even if the CBD is sourced from hemp, hemp is regulated by the United States Food and Agriculture Code. With regard to hemp cultivation and use, the United States Food and Agriculture Code incorporates the provisions of the 2014 Farm Bill. Under the 2014 Farm Bill, hemp can only be cultivated for research, not retail. And, if done for research, the cultivator must be registered with the state.
"Industrial hemp" means a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of 1 percent tetrahydrocannabinol (THC) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom.
Is commercial activity related to industrial hemp permitted in Carlsbad?
No. While industrial hemp is excluded from the definition of “cannabis” in Carlsbad Municipal Code Section 8.90.020, the California Department of Food and Agriculture has taken the position that industrial hemp is a Schedule I drug per the federal Controlled Substance Act. Therefore, in accordance with federal law, commercial activity related to industrial hemp is not permitted in Carlsbad.
City Action: At an upcoming meeting, the City Council will consider adoption of the new language prohibiting commercial marijuana activities except as allowed under federal law (primarily medical research activities), prohibiting delivery within Carlsbad and making violations of these laws a misdemeanor.
Initiative: Proponents of a proposed initiative have been cleared to begin gathering signatures in Carlsbad. They have until February 2018 to qualify for the ballot.
Ordinance proposed at April 25, 2017 City Council meeting