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Berkeley, CA City Council Zoning Ordinance on Medical Marijuana Dispensaries

Passed, November 18, 1997


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:


    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
    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

    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

    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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