HomeMy WebLinkAboutOrd 2019-3453ORDINANCE NO. 3453
ORDINANCE OF THE CITY OF CHULA VISTA AMENDING
VARIOUS SECTIONS OF THE CHULA VISTA MUNICIPAL
CODE (CVMC) TO CLARIFY PROVISIONS REGARDING
ILLEGAL COMMERICAL CANNABIS CONDUCT AND
PENALTIES, INCLUDING CVMC SECTIONS 1.04.010,
DEFINITION OF RESPONSIBLE PARTY, 1.41.110, CIVIL
PENALTIES, 5.19.020, DEFINITIONS, AND 5.19.280,
ENFORCEMENT AND PENALTIES
WHEREAS, Chula Vista Municipal Code section 1.04.010 identifies and defines
responsible parties for purposes of violations of the Chula Vista Municipal Code; and
WHEREAS, Chula Vista Municipal Code section 1.41.110(C) currently caps the amount
of civil penalties that can be assessed against a responsible party for violations of the municipal
code at $2,500 per day, with the exception of violations of Chapter 15.04 CVMC; and
WHEREAS, Chula Vista Municipal Code section 5.19.020 identifies and defines
commercial cannabis activity and manager for purposes of Chapter 5.19 of the Chula Vista
Municipal Code; and
WHEREAS, Chula Vista Municipal Code section 5.19.280(C) authorizes the assessment
of civil penalties in the amount of up to $10,000 for each and every violation of Chapter 5.19
CVMC; and
WHEREAS, in City and County of San Francisco v. Sainez, the California Court of
Appeal found that fines in excess of $100,000 did not violate excessive fines clauses of the
Federal and State Constitutions; and
WHEREAS, for purposes of constitutional inquiry under the excessive fines clause, the
amount of fines imposed are required to bear some proportional rel ationship to the penalty’s
deterrent purpose and the nature of misconduct; and
WHEREAS, unlawful cannabis businesses have continued to operate in violation of the
Chula Vista Municipal Code despite enforcement action and the assessment of civil penalties in
the amount of $2,500 per day; and
WHEREAS, under California Business and Professions Code section 26200(a)(1), local
jurisdictions are authorized to either permit and regulate or prohibit the operation of cannabis
businesses within their boundaries; and
WHEREAS, the City of Chula Vista has experienced the negative impacts and secondary
effects associated with the operation of unlawful cannabis businesses within its corporate
boundaries; and
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WHEREAS, unregulated businesses remain a source of danger and disruption for City
residents and businesses; and
WHEREAS, pursuant to its police powers, including but not limited to California
Constitution Article XI, Section 5(b) authority over municipal affairs, the City of Chula Vista has
general authority over the public health, safety, and welfare of its citizens; and
WHEREAS, the proposed amendments do not cause a substantial change to the
objectives and policies contained in Chula Vista Municipal Code chapters 1.04 and 5.19, but
instead clarify important provisions and facilitate City’s ability to implement such objectives and
policies; and
WHEREAS, it is the intent of the City Council to authorize robust enforcement
procedures with regard to unlawful cannabis activity within the City in order to protect public
safety, health, and other law enforcement interests.
NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows:
Section I. Environmental Findings
A. Chapter 1, Section 1.04.010 of the Chula Vista Municipal Code regarding the
definition of “Responsible party” is amended to read as follows:
1.04.010 Definitions and rules of construction.
“Responsible party” means, individually and collectively, the owner(s) of real property upon
which a violation of this code or state law exists, a tenant or occupant in possession, a licensee,
or any other person who has caused, created, or continues to allow a condition to occur or exist
upon real property constituting a violation of this code or state law. A “responsible party” can be
a natural person or an entity.
[All other provisions and definitions in section 1.04.010 remained unchanged]
B. Chapter 1, Section 1.41.100 of the Chula Vista Municipal Code regarding the
assessment of civil penalties is amended to read as follows:
1.41.110 Civil penalties.
A. The council finds that there is a need for alternative methods of enforcement of the Chula
Vista Municipal Code and applicable state codes. The council further finds that the assessment of
civil penalties through an administrative hearing procedure for code violations is a necessary
alternative method of code enforcement. The administrative assessment of civil penalties
established in this section is in addition to any other administrative or judicial remedy established
by law which may be pursued to address violations of the municipal code or applicable codes.
B. Civil penalties may be assessed against a responsible party for continued violations of the
municipal code or applicable state codes, whether of the same section or any combination, that
reflect a continuing disregard for the requirements of such laws. The director may issue a notice
and order to the responsible party assessing a civil penalty pursuant to this section. The civil
penalty may be enforced against the responsible party as a lien pursuant to CVMC 1.41.140.
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C. Except for violations of land grading ordinances contained in Chapter 15.04 CVMC and
violations of commercial cannabis provisions contained in Chapter 5.19 CVMC, civil penalties
may be assessed at a rate not to exceed $2,500 per violation per day.
D. The civil penalty for violations of land grading permits or land grading work done without the
issuance of a permit shall be based on an estimate by the director of grading work performed.
The rate of civil penalties shall be as follows:
1. Less than 250 cubic yards, but not meeting the requirements for an exemption from
grading permit under CVMC 15.04.150: $1,000 per violation;
2. Two hundred fifty-one (251) to 500 cubic yards: $5,000 per violation;
3. Five hundred one (501) to 1,000 cubic yards: $10,000 per violation;
4. Over 1,001 cubic yards: $25,000 per violation;
5. In the event any individual, firm, company, developer or property owner causes a second
violation of the land grading permit ordinance, either on the same property or different
property and whether or not part of the same development, the rate of civil penalties shall be
doubled. For third and subsequent violations, the rate of civil penalties shall be multiplied by
a factor of four.
E. Civil penalties for violations of Chapter 5.19 CVMC may be assessed at a rate not to exceed
$10,000 per violation per day.
F. Civil penalties under this section may be accrued retroactive to the date the violations were
first discovered, as evidenced by the issuance of a notice of violation pursuant to CVMC
1.41.030, or any later date determined by the director. In determining the amount to be imposed
on a daily rate, the director shall consider the following factors:
1. Duration of the violation;
2. Frequency or occurrence of the violation;
3. Frequency or occurrence of other violations during the period of accrual;
4. Seriousness of the violation in relation to its threat or impact upon public health, welfare
or safety;
5. History of the violations;
6. Activity taken by the responsible party to obstruct or interfere with correction of the
problem;
7. Good faith or bad faith efforts by the responsible party to comply;
8. The impact of the violation on the surrounding property and community;
9. The financial ability of the responsible party to have corrected the violation in a timely
fashion.
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G. The director shall comply with Chapter 1.40 CVMC concerning notice of the proposed civil
penalties and the right to a hearing to contest or confirm. Unless contested, the notice and order
shall be final and be enforced pursuant to CVMC 1.41.160. If contested, the hearing examiner
shall limit the hearing to the following issues:
1. Whether the responsible party maintained a use or condition on real property that violated
the municipal code or state law on the dates specified; and
2. Whether the civil penalty assessed is consistent with the criteria expressed in subsection
(F) of this section. The hearing examiner may, however, exercise discretion pursuant to
CVMC 1.40.020(E) and increase or decrease the penalties assessed to a level determined to
be supported by the evidence meeting the criteria under subsection (F) of this section.
H. The director shall issue a final order based on the proceedings under subsection (F) of this
section and establish a date for payment, following which date an enforcement lien may be
imposed upon the property in accordance with applicable law. The imposition of an enforcement
lien may be made a part of the proceedings and notice and order under CVMC 1.41.100 or this
section.
C. Chapter 5, Section 5.19.020 of the Chula Vista Municipal Code regarding the
definitions of “Commercial Cannabis Activity” and “Manager” are amended to read as follows:
“Commercial Cannabis Activity” means the commercial Cultivation, poss ession, furnishing,
manufacture, distribution, processing, storing, laboratory testing, packaging, labeling,
transportation, delivery or sale of Cannabis or Cannabis Products.
“Manager” means any individual Person(s) designated by a Commercial Cannabis Business to
manage day-to-day operations of the Commercial Cannabis Business or any Person acting with
apparent management authority. Evidence of management authority includes, but is not limited
to, evidence that the Person has the power to direct, supervise, or hire and dismiss employees or
volunteers, control hours of operation, create policy rules, or purchase supplies.
[All other provisions and definitions in section 5.19.020 remained unchanged]
D. Chapter 5, Section 5.19.280 of the Chula Vista Municipal Code regarding
enforcement and penalties regarding commercial cannabis activity is amended to read as follows:
5.19.280 Enforcement and Penalties.
A. It is unlawful to:
1. Own, operate, set up, conduct, maintain, facilitate, or direct Commercial Cannabis Activity
in the City without a valid City License authorizing such Commercial Cannabis Activity;
2. Participate as an employee, contractor, agent, volunteer, or in any other capacity in
Commercial Cannabis Activity in the City without a valid City License;
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3. Use any parcel or any portion of parcel of land for Commercial Cannabis Activity without a
valid City License;
4. Lease, rent to, or otherwise allow Commercial Cannabis Activity to occupy or access any
parcel or portion of parcel of land in the City without a valid City License.
B. It shall be unlawful for any person to violate any provision, or to fail to comply with the
requirements, of this Chapter or any regulation adopted hereunder. Any person violating any of
the provisions or failing to comply with any of the mandatory requirements of this Chapter or
any regulation adopted hereunder shall be guilty of a misdemeanor punishable by a fine of not
more than $1,000.00 or imprisonment for a period of not more than six months, or by bot h a fine
and imprisonment. Each day that a violation continues is deemed to be a new and separate
offense. No proof of knowledge, intent, or other mental state is required to establish a violation.
C. Any condition caused or allowed to exist in violation of any of the provisions of this Chapter
or any regulation adopted hereunder is a public nuisance and may be abated by the City, or by
the City Attorney on behalf of the people of the State of California, as a nuisance by means of a
restraining order, injunction, or any other order or judgment in law or equity issued by a court of
competent jurisdiction. The City, or the City Attorney on behalf of the people of the State of
California, may seek injunctive relief to enjoin violations of, or to compel complian ce with this
Chapter or seek any other relief or remedy available at law or equity, including the imposition of
monetary civil penalties. Each day that a violation continues is deemed to be a new and separate
offense. Civil penalties for violations of this Chapter may be assessed at a rate not to exceed
$10,000 per violation per day.
D. Whenever in this Chapter any act or omission is made unlawful, it shall include causing,
aiding, abetting, suffering, or concealing the fact of such act or omission.
E. The remedies specified in this Section are cumulative and in addition to any other remedies
available under State or local law for a violation of this Code.
F. Nothing in this Section shall be construed as requiring the City to allow, permit, license,
authorize, or otherwise regulate Commercial Cannabis Activity, or as abridging the City’s police
power with respect to enforcement regarding Commercial Cannabis Activity.
Section II. Severability
If any portion of this Ordinance, or its application to any person or circumstance, is for
any reason held to be invalid, unenforceable or unconstitutional, by a court of competent
jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or
unconstitutionality shall not affect the validity or enforceability of the remaining portions of the
Ordinance, or its application to any other person or circumstance. The City Council of the City of
Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase
of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses
or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional.
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Section III. Construction
The City Council of the City of Chula Vista intends this Ordinance to supplement, not to
duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in
light of that intent.
Section IV. Effective Date
This Ordinance shall take effect and be in force on the thirtieth day after its final passage.
Section V. Publication
The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause
the same to be published or posted according to law.
[SIGNATURES ON THE FOLLOWING PAGE]
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Presented by Approved as to form by
_____________________________________ ____________________________________
Gary Halbert Glen R. Googins
City Manager City Attorney
PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista,
California, this 9th day of April 2019, by the following vote:
AYES: Councilmembers: Diaz, Galvez, McCann, Padilla, and Casillas Salas
NAYS: Councilmembers: None
ABSENT: Councilmembers: None
Mary Casillas Salas, Mayor
ATTEST:
Kerry K. Bigelow, MMC, City Clerk
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )
CITY OF CHULA VISTA )
I, Kerry K. Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing
Ordinance No. 3453 had its first reading at a regular meeting held on the 26th day of March 2019
and its second reading and adoption at a regular meeting of said City Council held on the 9th day
of April 2019; and was duly published in summary form in accordance with the requirements of
state law and the City Charter.
Dated Kerry K. Bigelow, MMC, City Clerk
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