HomeMy WebLinkAboutOrd 2020-25 ORDINANCE NO. 20-25
AN ORDINANCE OF THE MAYOR AND COMMON COUNCIL OF THE
TOWN OF FOUNTAIN HILLS, ARIZONA, AMENDING THE CODE OF
FOUNTAIN HILLS, ARIZONA BY ADOPTING A NEW ARTICLE II
(RECREATIONAL MARIJUANA), IN CHAPTER 11 (OFFENSES) OF
THE FOUNTAIN HILLS TOWN CODE; ESTABLISHING A PURPOSE;
SETTING FORTH DEFINITIONS; PROHIBITING MARIJUANA ON
PUBLIC PROPERTY; PROHIBITING MARIJUANA ESTABLISH-
MENTS AND MARIJUANA TESTING FACILITIES; ENACTING
REASONABLE REGULATIONS FOR MARIJUANA CULTIVATION
ON RESIDENTIAL PROPERTY; SETTING FORTH VIOLATIONS;
PROVIDING FOR ENFORCEMENT AND PENALTIES; AND SETTING
A CONDITIONAL EFFECTIVE DATE
RECITALS:
WHEREAS, marijuana contains tetrahydrocannabinol ("THC"), which remains on Schedule I of
the Controlled Substances Act pursuant to 21 U.S.C. § 811 et al. and any possession and use is
a violation of federal law pursuant to 21 U.S.C. § 841 et al.; and
WHEREAS, the Arizona Medical Marijuana Act, Arizona Revised Statutes Sections § 36-2801 et
al., and Title 9, Chapter 17 of the Arizona Administrative Code allow the establishment and
operation of nonprofit medical marijuana dispensaries in the Town according to a prescribed
statutory and regulatory process;
WHEREAS, the statewide ballot measure 1-23-2020, known as "Smart and Safe Arizona Act" has
been certified as Proposition 207 and placed on the November 3, 2020 general election ballot
and contains provisions authorizing the possession, consumption, purchase, processing,
manufacturing or transporting of marijuana by an individual who is at least twenty-one (21) years
of age; authorizing possession, transport, cultivation or processing of marijuana plants in a
primary residence by adults over 21 years of older; allowing a nonprofit medical marijuana
dispensary or other non-dispensary applicant to apply to the Department of Health Services to
become a licensed marijuana establishment authorized to engage in the retail sale, cultivation
and manufacturing of marijuana; and allowing the Department, or another entity designated by
the Department, to become a marijuana testing facility to test the potency of marijuana and detect
any harmful contaminants;
WHEREAS, the Town finds that Proposition 207 authorizes marijuana establishments and testing
facilities to use chemical extraction or chemical synthesis, including butane and other flammable
gases, to extract marijuana concentrate, which poses a threat to the health, safety and security
of the community and increases the responsibilities of law enforcement and other Town
departments to respond to violations of state and local laws, including building, electrical,
plumbing, and fire codes;
WHEREAS, the Town seeks to protect public health, safety, and welfare by prohibiting marijuana
establishments and marijuana testing facilities in the Town and by enacting additional regulations.
ORDINANCE NO. 20-25 PAGE 2
ENACTMENTS:
NOW THEREFORE, BE IT ORDAINED by the Common Council of the Town of Fountain Hills,
Arizona, as follows:
Section I. In General.
The Code of Fountain Hills, Arizona, Chapter 11 Offenses, is hereby amended by adding a new
Article II Recreational Marijuana to read as follows:
Article II Recreational Marijuana
Sec. 11-2-1 Purpose.
Sec. 11-2-2 Definitions.
Sec. 11-2-3 Marijuana Prohibited on Public Property.
Sec. 11-2-4 Marijuana Establishment Prohibited; Dual Licensee Exception.
Sec. 11-2-5 Marijuana Testing Facility Prohibited.
Sec. 11-2-6 Marijuana at a Primary Residence for Personal Use.
Sec. 11-2-7 Violations; Enforcement; Penalties.
Sec. 11-2-1 Purpose.
This Article is adopted to protect the health, safety, and welfare of the community. Except as
allowed by law for personal or private use, or as permitted under the Arizona Medical Marijuana
Act, the Town prohibits the consumption, cultivation, extraction, manufacturing, processing, sale
or distribution, of marijuana or marijuana products in the Town. Nothing in this Article is intended
to promote or condone the consumption, cultivation, extraction, manufacturing, processing, sale
or distribution of marijuana or marijuana products in violation of any applicable law.
Sec. 11-2-2 Definitions.
The below words and phrases, wherever used in this Article, shall be construed as defined in this
section unless, clearly from the context, a different meaning is intended. Words used in the
present tense include the future tense, words in the plural number include the singular number,
and words in the singular number include the plural number.
A. "Chemical Extraction" means the process of removing a particular component of a mixture
from others present, including removing resinous tetrahydrocannabinol from marijuana.
B. "Chemical Synthesis" means production of a new particular molecule by adding to,
subtracting from, or changing the structure of a precursor molecule.
C. "Consume," "Consuming," and "Consumption" mean the act of ingesting, inhaling or
otherwise introducing marijuana into the human body.
D. "Consumer" means an individual who is at least twenty-one years of age and who
purchases marijuana or marijuana products.
E. "Cultivate" and "Cultivation" mean to propagate, breed, grow, prepare, and package
marijuana.
ORDINANCE NO. 20-25 PAGE 3
F. "Department" means the State of Arizona Department of Health Services or its successor
agency.
G. "Dual Licensee" means an entity that holds both a nonprofit medical marijuana dispensary
registration and a marijuana establishment license.
H. "Extract" and "Extraction" means the process of extracting or separating resin from
marijuana to produce or process any form of marijuana concentrates using water, lipids,
gases, solvents, or other chemicals or chemical processes.
"Manufacture" and "Manufacturing" means to compound, blend, extract, infuse or
otherwise make or prepare a marijuana product.
J. "Marijuana"
1. Means all parts of the plant of the genus cannabis, whether growing or not, as well
as the seeds from the plant, the resin extracted from any part of the plant, and
every compound, manufacture, salt, derivative, mixture or preparation of the plant
or its seeds or resin.
2. Includes cannabis as defined in A.R.S. § 13-3401.
3. Does not include industrial hemp, the fiber produced from the stalks of the plant of
the genus cannabis, oil or cake made from the seeds of the plant, sterilized seeds
of the plant that are incapable of germination, or the weight of any other ingredient
combined with marijuana to prepare topical or oral administrations, food, drink or
other products.
K. "Marijuana Concentrate"
1. Means resin extracted from any part of a plant of the genus cannabis and every
compound, manufacture, salt, derivative, mixture or preparation of that resin or
tetrahydrocannabinol.
2. Does not include industrial hemp or the weight of any other ingredient combined
with cannabis to prepare topical or oral administrations, food, drink, or other
products.
L. "Marijuana Establishment" means an entity licensed by the Department to operate all of
the following:
1. A single retail location at which the licensee may sell marijuana and marijuana
products to consumers, cultivate marijuana and manufacture marijuana products.
2. A single off-site cultivation location at which the licensee may cultivate marijuana,
process marijuana and manufacture marijuana products, but from which marijuana
and marijuana products may not be transferred or sold to consumers.
ORDINANCE NO. 20-25 PAGE 4
3. A single off-site location at which the licensee may manufacture marijuana
products and package and store marijuana and marijuana products, but from which
marijuana and marijuana products may not be transferred or sold to consumers.
M. "Marijuana Products" means marijuana concentrate and products that are composed of
marijuana and other ingredients and that are intended for use or consumption, including
edible products, ointments, and tinctures.
N. "Marijuana Testing Facility' means the Department or another entity that is licensed by the
Department to analyze the potency of marijuana and test marijuana for harmful
contaminants.
O. "Nonprofit Medical Marijuana Dispensary' means a non-profit entity as defined in A.R.S.
§ 36-2801(12).
P. "Open Space" means a public park, public sidewalk, public walkway, public trail, preserve,
or public pedestrian thoroughfare.
Q. "Person" means an individual, partnership, corporation, association, or any other entity of
whatever kind or nature.
R. "Process" and "Processing" means to harvest, dry, cure, trim or separate parts of the
marijuana plant.
S. "Public Place" has the same meaning prescribed in the Smoke-Free-Arizona Act, A.R.S.
§ 36-601.01.
T. "Smoke" means to inhale, exhale, burn, carry or possess any lighted marijuana or lighted
marijuana products, whether natural or synthetic.
Sec. 11-2-3 Marijuana Prohibited on Public Property.
A. The consumption, cultivation, extraction, manufacture, processing, sale or distribution of
marijuana or marijuana products is prohibited on property that is occupied, owned,
controlled or operated by the Town.
B. It is unlawful for an individual to smoke marijuana or consume marijuana products on
property that is occupied, owned, controlled, or operated by the Town.
C. It is unlawful for an individual to smoke marijuana or consume marijuana products in an
open space in the Town.
D. It is unlawful for an individual to smoke marijuana or consume marijuana products in a
public place in the Town.
Sec. 11-2-4 Marijuana Establishment Prohibited; Dual Licensee Exception.
A. To the fullest extent allowable by law, the operation of a marijuana establishment is
prohibited in the Town, except where authorized for a dual licensee who:
ORDINANCE NO. 20-25 PAGE 5
1. Operates both a nonprofit medical marijuana dispensary and marijuana
establishment cooperatively in a shared location; and
2. Has not forfeited or terminated the nonprofit medical marijuana dispensary
registration from the Department.
Sec. 11-2-5 Marijuana Testing Facility Prohibited.
To the fullest extent allowable by law, the operation of a marijuana testing facility is prohibited in
the Town.
Sec. 11-2-6 Marijuana at a Primary Residence for Personal Use.
A. To the fullest extent allowable by law, marijuana consumption, cultivation, extraction,
manufacture, and processing is permitted in an individual's primary residence for
personal use subject to the following conditions and limitations:
1. It shall be unlawful for any individual who is at least twenty-one (21) years of age
to possess, transport, cultivate, or process more than six (6) marijuana plants.
2. It shall be unlawful for two or more individuals who are at least twenty-one (21)
year of age to possess, transport, cultivate, or process more than twelve (12)
marijuana plants.
3. Except as provided by A.R.S. § 36-2801 et al. and this section, it shall be unlawful
for an individual to otherwise consume, cultivate, extract, manufacture, possess,
or process marijuana in a residence or accessory structure within the Town limits.
4. Marijuana or marijuana products shall not be cultivated, extracted, manufactured,
or processed outdoors.
5. The cultivation, extraction, manufacture, and processing of marijuana shall be
limited to a closet, room, greenhouse, or other enclosed area within the primary
residence or an accessory structure on the property with a permanent foundation
that is equipped with a lock or other security device that prevents access by minors.
6. Individuals shall not extract, manufacture, or process marijuana by chemical
extraction or chemical synthesis, excluding manual or mechanical means.
7. The indoor area used for cultivation, extraction, manufacturing, or processing shall
include a ventilation and filtration system designed to ensure that odors from the
cultivation extraction, manufacturing, or processing are not detectable beyond the
property line of a parcel containing a single dwelling unit, or beyond the boundaries
of a single dwelling unit in multifamily dwellings, cluster houses, condominiums, or
similar closely built unit arrangements, and designed to prevent mold and moisture
and otherwise protect the health and safety of persons residing in the residence or
unit. This shall include, at a minimum, a system meeting the requirements of the
current, adopted edition of the International Residential Code.
8. Marijuana may only be cultivated, extracted, manufactured, or processed as an
accessory use at the primary residence of the person conducting such activity or
ORDINANCE NO. 20-25 PAGE 6
in an accessory structure on the property with a permanent foundation, and only
for such person's own use, or by a primary caregiver on behalf of a patient.
9. It is unlawful to use any grow lighting system for the indoor cultivation of marijuana
other than light-emitting diodes (LEDs), compact fluorescent lamps (CFLs) or
fluorescent lighting. All high-intensity discharge (HID) lighting, including, but not
limited, to mercury-vapor lamps, metal-halide (MH) lamps, ceramic MH lamps,
sodium-vapor lamps, high-pressure sodium (HPS) lamps and xenon short-arc
lamps, are prohibited.
10. Cultivation, extraction, manufacturing, and processing shall take place in an area
where the marijuana plants or products are not visible from public view without
using binoculars, aircraft, or other optical aids.
Sec. 11-2-7 Violations; Enforcement; Penalties.
A. It is a violation of this Article for a person to consume, cultivate, extract, manufacture, or
process marijuana or marijuana products if the person fails to meet all the requirements
in this Article or state law, including the Department's rules.
B. Each day any violation of any provision of this Article shall continue shall constitute a
separate offense.
C. Except as otherwise provided in A.R.S. § 36-2853, any violation of this Article is
punishable by Section 1-8-2(A) of this code.
D. Violations of this Article are in addition to any other violation enumerated within the Town
ordinances or the Town Code and in no way limits the penalties, actions or abatement
procedures which may be taken by the Town for any violation of this Article, which is
also a violation of any other ordinance or Code provision of the Town or federal or state
law. Conviction and punishment of judgment and civil sanction against any person under
this Article shall not relieve such person from the responsibility of correcting prohibited
conditions, or removing prohibited structures or improvements, and shall not prevent the
enforced correction or removal thereof.
E. The remedies provided in this Article shall be cumulative and in addition to any other
federal, state, or local remedy, which may be available. Nothing contained herein shall
be construed to preclude prosecution under any other applicable statute, ordinance,
rule, order, or regulation.
Section II. Providing for Repeal of Conflicting Ordinances.
All ordinances and parts of ordinances in conflict with the provisions of this Ordinance or any part
of the Code adopted herein by reference, are hereby repealed.
Section III. Recitals.
The recitals above are fully incorporated in this Ordinance by reference.
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Section IV. Effective Date.
This Ordinance does not become effective unless and until the Smart and Safety Act(Proposition
207) becomes law when approved by a majority of the votes cast at the November 3, 2020 general
election and on proclamation of the governor. Upon the governor's proclamation, this Ordinance
shall become effective.
Section V. Zoning Considerations.
In accordance with Article II, Sections 1 and 2, Constitution of Arizona, the Town Council has
considered the individual property rights and personal liberties of the residents of the Town before
adopting this ordinance.
Section VI. Preservation of Rights and Duties.
This Ordinance does not affect the rights and duties that matured, penalties that were incurred,
or proceedings that were begun before the effective date of this Ordinance.
Section VII. Providing for Severability.
If any section, subsection, sentence, clause, phrase or portion of this Ordinance or any part of the
Code adopted herein by reference, is for any reason held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions thereof.
PASSED AND ADOPTED by the Common Council of the Town of Fountain Hills, Arizona, this
20th day of October, 2020.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO:
Gin Dickey, ayor lizab . Burke, Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
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Grady E. Miller, Town Manager Aaron D. Arnson, Town Attorney