Cannabis (Marijuana) FAQs
Is it legal to possess cannabis in San Marcos?
State law permits individuals 21 years of age or older to possess up to 28.5 grams of cannabis or eight grams of concentrated cannabis (Health & Safety Code § 11362.1).
Is it legal to cultivate cannabis indoors in San Marcos?
State law permits individuals 21 years or over to grow up to 6 cannabis plants indoors per residence, regardless of the number of persons/households living in a residence. (Health & Safety Code § 11362.2)
SMMC Chapter 5.54 requires indoor cultivation to comply with certain requirements, including, but not limited to:
- Occurs within a fully enclosed structure of a private residence
- Residence must have legal/functioning cooking, sleeping and sanitation facilities
- Cultivation area inaccessible to persons under 21 years
- Cultivation area secured by lock and key or other security device
- Grow not visible from public right-of-way
- Lighting, plumbing or electrical components used for cultivation must comply with all applicable laws
- Lighting cannot exceed 1,000 watts per light
- Use of volatile solvents prohibited
- Proper ventilation required; cultivation cannot produce humidity or mold
- No public nuisance (i.e. produces light, glare, heat, noise, odor or vibration)
- Must have a portable, fully charged fire extinguisher
Is it legal to cultivate cannabis outdoors in San Marcos?
No. SMMC Chapter 5.54 prohibits outdoor cultivation of cannabis in all zones within the City’s jurisdictional limits.
Is it legal to use cannabis in public in San Marcos?
No. SMMC Chapter 5.54 prohibits smoking, ingesting, inhaling, vaporizing, or otherwise using or introducing cannabis or cannabis products into the body in the following locations:
- Public places (i.e. retail stores, retail service establishments, retail food production and marketing establishments, restaurants, theaters, waiting rooms, reception areas, educational facilities and public transportation facilities; buildings owned, leased or occupied by the City; City facilities, grounds, trails and/or parks and recreational areas)
- Grounds of a school, day care center or youth center
- Within 1,000 feet of a school, day care center or youth center
- Locations prohibiting tobacco use
- Locations prohibiting persons under 21 years
- Locations permitting sale or consumption of alcohol or tobacco
- While driving, operating or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation
Are businesses permitted to engage in commercial cannabis operations in San Marcos?
No. SMMC Chapter 5.54 prohibits any commercial cannabis operation, use and/or activity in all zones within the City’s jurisdictional limits, including the following:
- Operating a dispensary
- Commercial cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or retail, wholesale or other sale of cannabis and/or cannabis products
- All business and/or operations activities and uses associated with commercial cannabis
No permit, license or other entitlement or authorization, whether conditional or otherwise, will be issued by the City for the establishment of such operations, uses and/or activities.
Are businesses permitted to engage in commercial cannabis operations relating to cannabidiol (CBD) or CBD/hemp products in San Marcos?
It depends on the type of product and, if that product is permitted, the amount of THC concentration. On December 20, 2018, the federal Agriculture Improvement Act of 2018 (“2018 Farm Bill”) was signed into law. Among other things, the 2018 Farm Bill removed tetrahydrocannabinols found in industrial hemp with a concentration of not more than 0.3 percent on a dry-weight basis from the list of Schedule I controlled substances under the federal Controlled Substances Act. However, the 2018 Farm Bill expressly preserved the U.S. Food & Drug Administration’s (“FDA”) authority to regulate products containing cannabis or cannabis-derived compounds under the federal Food, Drug and Cosmetic (“FD&C”) Act. Additionally, the FDA has stated that even if a CBD product meets the definition of “hemp” under the 2018 Farm Bill, it still must comply with all other applicable laws and regulations, including the FD&C Act and Section 351 of the federal Public Health Service Act.
The FDA and the California Department of Public Health prohibit the sale of CBD products that are used for or intended to be used for human or animal consumption. The FDA also prohibits the sale of any drug product that contains hemp or CBD, besides Epidiolex, which is marketed for therapeutic or medical uses. Finally, the FDA prohibits the sale of hemp or CBD products marketed as dietary supplements. San Marcos Municipal Code sections 5.04.090(a)(4) and 5.04.100(a) require all businesses to comply with federal law. Therefore, businesses in San Marcos are not permitted to engage in commercial activity involving these types of hemp or CBD products, and may only engage in commercial activity involving topical-based hemp or CBD products containing a THC-concentration of 0.3 percent or less, which are intended to be rubbed on, poured on, sprinkled on, sprayed on, or otherwise applied to the exterior of the human body (i.e. oils, creams, gels, etc.).
As a condition to the issuance of, continued use of or renewal of your City business license, if your business intends to distribute, manufacture, process, store, sell or use the foregoing permitted types of hemp CBD products in San Marcos, you must submit an affidavit to the City signed under penalty of perjury on a form prepared by the City. The affidavit must, among other things, affirm that your business will not violate federal law and acknowledges and agrees that the City may periodically conduct independent laboratory testing of the hemp or CBD products you distribute, manufacture, store, sell or use at a laboratory selected by the City to confirm that the products contain a THC-concentration of 0.3 percent or less. The affidavit must also affirm your understanding that if the products your business sells are determined by the City to contain a THC-concentration of more than 0.3 percent and/or if your business distributes, manufactures, processes, stores, sells or uses any of the foregoing prohibited types of hemp or CBD products, your City business license will be revoked, you will no longer be permitted to operate your business in San Marcos, and you will be subject to fines and penalties and be responsible for all City enforcement related costs, which includes testing.
Who do I contact if I have further questions?
Contact the Planning Division at email@example.com or (760) 744-1050, Ext. 3204.