Alturas Municipal Code Ch. 13.2 Medical Marijuana

Footnotes:

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Editor's note— Ord. No. 504, § 1, adopted Jan. 26, 2016, repealed former Ch. 13.2, §§ 13.2-1—13.2-7, and enacted a new Ch. 13.2 as set out herein. Former Ch. 13.2 pertained to similar subject matter and derived from Ord. No. 490, § 1, 6-14-2011.

It is the purpose and intent of this chapter to regulate the locations and operations of medical marijuana collectives in order to promote the health, safety, and general welfare of residents and businesses within the city. It is neither the intent nor the effect of this chapter to condone or legitimize the use or possession of marijuana except as allowed by California law.

(Ord. No. 504, § 1, 1-26-2016)

For the purpose of this chapter, the following words and phrases shall have the following meanings:

"Drug paraphernalia" means as defined in California Health and Safety Code section 11364.5, and as may be amended from time to time.

"Identification card" means as defined in California Health and Safety Code section 11362.5 et seq., and as may be amended from time to time.

"Medical marijuana collectives and cooperatives" means:

(1) Collective or cooperative shall be as defined by California statute or determined by case law and may include any facility or location where the primary purpose is to dispense medical marijuana that has been recommended by a physician, and where medical marijuana is made available to or distributed by or to a primary caregiver or a qualified patient in strict accordance with California Health and Safety Code section 11362.5 et seq. A collective or cooperative shall not include dispensing by primary caregivers to qualified patients in the following locations, so long as the location of the clinic, health care facility, hospice, or residential care facility is otherwise permitted by the City of Alturas Municipal Code or by applicable state laws:

a. A clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code;

b. A health care facility licensed pursuant to Chapter 2 Division 2 of the California Health and Safety Code;

c. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code;

d. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the California Health and Safety Code;

e. A residential hospice or a home health agency licensed pursuant to Chapter 8 of Division 2 of the California Health and Safety Code; provided that any such clinic, healthcare facility, hospice or residential care facility complies with applicable laws, including, but not limited to, Health and Safety Code section 11362.5.

"Person" means an individual, partnership, co-partnership, firm, association, joint stock company, corporation, limited liability company, or combination of the above in whatever form or character.

"Person with an identification card" means as set forth in California Health and Safety Code section 11362.5 et seq., and as may be amended from time to time.

"Physician" means a licensed medical doctor, including a doctor of osteopathic medicine as defined in the California Business and Professions Code.

"Primary caregiver" means as defined in California Health and Safety Code section 11362.5 et seq., and as may be amended from time to time.

"Qualified patient" means as defined in California Health and Safety Code section 11362.5 et seq., and as may be amended from time to time.

"School" means an institution of learning for minors, whether public or private, offering a regular course of instruction required by the California Education Code. This definition includes an elementary school, middle or junior high school, senior high school, or any special institution of education for persons under the age of eighteen years, whether public or private.

"Storefront" means a store or other commercial building at ground level that has frontage on a public street.

(Ord. No. 504, § 1, 1-26-2016)

An owner/operator of a collective or cooperative shall be required to apply for and obtain a seller's permit, as required by the State Board of Equalization.

(Ord. No. 504, § 1, 1-26-2016)

(a) Allowable Zoning for Collectives/Cooperatives. A collective or cooperative may be located within the General Commercial (C-2) zone district.

(b) Storefront Locations. A collective or cooperative shall be located only in a visible storefront type location which provides good public views of the collective/cooperative entrance, its windows, and the entrance to the collective/cooperative premises from a public street.

(c) Areas Where Collectives/Cooperatives Are Not Allowed. Notwithstanding subparagraph (A) above, a collective or cooperative shall not be allowed in the following locations or zones:

(1) On a parcel located within one thousand feet of a school.

(2) On a parcel located within one thousand feet of a day care center, day care home, recreation center, youth center, library or a public park.

(3) On a parcel located within one thousand feet of another collective or cooperative.

(d) Locational Measurements. The distance between a collective or cooperative and the above listed uses shall be made in a straight line from any parcel line of the real property on which the collective or cooperative is located to the parcel line of the real property on which the facility, building, structure, or portion of the building or structure, in which the above-listed use occurs or is located.

(Ord. No. 504, § 1, 1-26-2016)

Collective/cooperative operations shall be maintained only in compliance with the following day-to-day operational standards:

(1) Criminal History. A collective/cooperative owner/operator, his or her agent or employees, volunteer workers, or any person exercising managerial authority over a collective/cooperative on behalf of the owner/operator shall not have been convicted of, or be on probation or parole for, the sale or distribution of a controlled substance.

(2) Minors. It is unlawful for any collective/cooperative, owner/operator, or other person in charge of any collective/cooperative to employ any person who is not at least eighteen years of age. Persons under the age of eighteen shall not be allowed on the premises of a collective/cooperative unless they are a qualified patient or a primary caregiver, and they are in the presence of their parent or guardian. The entrance to a collective/cooperative shall be clearly and legibly posted with a notice indicating that persons under the age of eighteen are precluded from entering the premises unless they are a qualified patient or a primary caregiver, and they are in the presence of their parent or guardian.

(3) Collective/Cooperative Access. The following restrictions shall apply to all collectives/cooperatives:

a. The entrance area of the collective/cooperative building shall be strictly controlled. A viewer or video camera shall be installed in the door that allows maximum angle of view of the exterior entrance.

b. Only primary caregivers and qualified patients shall be allowed in the designated dispensing area along with collective/cooperative personnel.

(4) Collective/Cooperative Operations. The following restrictions shall apply to all operations by a collective/cooperative:

a. Floor Layout. A collective/cooperative shall have a lobby waiting area at the entrance to the collective/cooperative to receive clients, and a separate and secure designated area for dispensing medical marijuana to qualified patients or designated caregivers. The primary entrance shall be located and maintained clear of barriers, landscaping and similar obstructions so that it is clearly visible from public streets, sidewalks or site driveways.

b. Storage. A collective/cooperative shall have suitable locked storage on site, for after-hours storage of medical marijuana.

c. Security. A collective/cooperative shall provide adequate security on the premises, including provisions for adequate lighting and alarms, in order to ensure the safety of persons and to protect the premises from theft.

d. Security Cameras. Security surveillance cameras shall be installed to monitor the main entrance and exterior of the premises to discourage loitering, crime, illegal or nuisance activities. Security video shall be maintained for a period of not less than seventy-two hours.

e. Alarm System. Professionally monitored robbery alarm and burglary alarm systems shall be installed and maintained in good working condition within the collective/cooperative at all times.

f. A collective/cooperative shall meet all the operating criteria for the dispensing of medical marijuana as required pursuant to California Health and Safety Code section 11362.5 et seq.

g. Odors Control. A collective/cooperative shall have an air treatment system that ensures off-site odors shall not result.

h. Operating Hours. A collective/cooperative may operate seven days per week between the hours of 8:00 a.m. to 8:00 p.m.

i. A collective/cooperative shall dispense only to qualified patients or primary caregivers with a currently valid physician's recommendation in compliance with the criteria in California Health and Safety Code section 11362.5 et seq. Collective/cooperatives shall require such persons to provide valid official identification, such as a department of motor vehicles driver's license or state identification card.

j. Prior to dispensing medical marijuana, the collective/cooperative shall obtain a verification from the recommending physician's office personnel that the individual requesting medical marijuana is or remains a qualified patient pursuant to California Health and Safety Code section 11362.5 et seq.

k. A collective/cooperative shall not have a physician on-site to evaluate patients and/or provide a recommendation for the use of medical marijuana.

l. No person shall maintain, use, or operate a vending machine on the premises which dispenses marijuana to a qualified patient or primary caregiver.

(5) Consumption Restrictions. The following medical marijuana consumption restrictions shall apply to all collectives and cooperatives:

a. Marijuana shall not be smoked, ingested or otherwise consumed by any individual on the premises of the collective/cooperative. The term "premises" includes the actual building, as well as any accessory structures, parking lot or parking areas, or other surroundings within two hundred feet of the collective/cooperative's entrance.

b. Collective/cooperative operations shall not result in illegal re-distribution of medical marijuana or any controlled substance obtained from the collective/cooperative, or use or distribute in any manner which violates state law.

(6) Retail Sales and Cultivation.

a. No marijuana shall be cultivated on the premises of the collective/cooperative, except in compliance with Health and Safety Code section 11362.5 et seq.

b. A collective/cooperative shall acquire medical marijuana only from its constituent members, because only marijuana grown by a qualified patient or his/her primary caregiver may lawfully be transported by, or distributed to, other members of a collective or cooperative.

c. A collective/cooperative shall not cultivate, distribute or sell medical marijuana for a profit.

d. A collective/cooperative shall not sell or display any drug paraphernalia or any implement that may be used to administer medical marijuana with the exception of:

1. Pipes. For purposes of this section, "pipe" shall mean a small, hand-held burning device that holds a burning, dried marijuana leaf in a small cup at one end, while user uses lips to draw smoke through a small cylinder attached to the side of the bowl.

2. Rolling Papers. For purposes of this section, "rolling paper" shall mean small sheets, rolls, or leaves of paper for rolling one's own cigarettes.

e. A collective cooperative shall not conduct or engage in the commercial sale, trade, barter, exchange or provision of any product, good or service other than medical marijuana pursuant to the terms and conditions consistent with this chapter and applicable law.

f. A collective/cooperative shall comply with all the operating criteria for the dispensing of medical marijuana as is required pursuant to California Health and Safety Code section 11362.5 et seq.

(7) Collective/Cooperative Signage and Notices.

a. A notice shall be clearly and legibly posted in the collective/cooperative indicating that smoking, ingesting or consuming marijuana on the premises or in the vicinity of the collective/cooperative is prohibited.

b. Signs on the premises shall not obstruct the entrance or windows.

c. Address identification shall comply with local fire protection district address sign requirements.

d. Business identification signage shall comply with City of Alturas Municipal Code sections 28.46.010 through 28.46.060 Division 7 Sign Standards and shall be limited to that needed for identification only, consisting of a single window sign or wall sign that shall not exceed six square feet or ten percent of the window area, whichever is less.

(8) Employee Records. Each owner/operator of a collective/cooperative shall maintain a current register of the names of all volunteers and employees currently working at or employed by the collective/cooperative, and shall disclose such registration for inspection by any city officer or official, but only for the purposes of determining compliance with the requirements of this chapter.

(9) Patient Records. A collective/cooperative shall maintain confidential health care records of all patients and primary caregivers using only the identification card number issued by the county, or its agent, pursuant to California Health and Safety Code section 11362.71 et seq., as a protection of the confidentiality of the cardholders, or a copy of the written recommendation from a physician stating the need for medical marijuana under California Health and Safety Code section 11362.5 et seq.

(10) Staff Training. Collective/cooperative staff shall receive appropriate training for their intended duties to ensure understanding of rules and procedures regarding dispensing in compliance with state and local laws, and properly trained or professionally-hired security personnel.

(11) Site Management.

a. The owner/operator of the establishment shall take all necessary steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the premises and adjacent properties during business hours, if directly related to the patrons of the subject collectives/cooperative.

b. The owner/operator of the establishment shall take all necessary steps to reduce loitering in public areas, sidewalks, alleys and areas surrounding the premises and adjacent properties during business hours.

c. The owner/operator of the establishment shall provide patients with a list of the rules and regulations governing medical marijuana use and consumption within the city.

(12) Trash, Litter, and Graffiti.

a. The owner/operator shall clear the sidewalks adjoining the premises plus ten feet beyond property lines along the street, as well as any parking lots under the control of the operator, as needed to control litter, debris and trash.

b. The owner/operator shall remove all graffiti from the premises and parking lots under the control of the operator within twenty-four (24) hours of its application.

(13) Compliance with Other Requirements. The collective/cooperative operator shall comply with all provisions of all local, state or federal laws, regulations or orders.

(14) Alcoholic Beverages. No collective/cooperative shall hold or maintain a license from the state division of alcoholic beverage control for the sale of alcoholic beverages, or operate a business on the premises that sells alcoholic beverages. No alcoholic beverages shall be allowed or consumed on the premises.

(15) Parking Requirements. Collectives and cooperatives shall be considered general retail (enclosed) uses relative to the parking requirements imposed by the City of Alturas Municipal Code sections 28.45.010 through 28.45.020 Division 6 Parking Standards.

(16) Inspection Authority. City of Alturas staff may inspect every medical marijuana collective/cooperative at any time during regular business hours to ensure compliance with the provisions of this chapter.

(Ord. No. 504, § 1, 1-26-2016)

(a) Those collectives/cooperatives which were authorized by the city prior to the date of the adoption of the ordinance enacting this chapter shall be deemed pre-existing legal uses of real property upon which they are situated.

(b) The collective/cooperative shall be subject to the requirements for nonconforming uses of City of Alturas Municipal Code Chapter 28.62.010 Division 3 Nonconforming Uses, Structures, and Lots.

(Ord. No. 504, § 1, 1-26-2016)

It is the purpose and intent of this chapter to establish standards for the cultivation of medical marijuana, including the location of the cultivation, size of the area used for cultivation, and the use of fencing or other screening and security structures, to accommodate the needs of qualified patients and their caregivers. Nothing in this chapter shall be construed to authorize any use, possession, cultivation, or distribution of marijuana except as allowed by California law.

(Ord. No. 505, § 1, 1-26-2016)

"Accessory building" means a detached building subordinate to and located on the same parcel as a residence, the use of which is incidental to that of the residence. Accessory building does not include any tent, trailer, recreational vehicle, or other vehicle or any building designed or used for human habitation.

"Canopy" means the total combined covered area for all locations on a property where medical marijuana is being cultivated, including indoor areas, outdoor areas, or a combination of both, as measured by the horizontal extent of the plant or combination of plants at the widest point and measured in a straight line.

"Collective" or "Cooperative" shall be as defined by City of Alturas Municipal Code section 13.2-2 Definitions.

"Cultivation" means the planting, growing, harvesting, drying, or processing of marijuana plants or any part thereof.

"Day care center" means any licensed child day care facility other than a small or large day care home, including infant centers and preschools.

"Day care home" means a home, licensed by the state, that regularly provides nonmedical care, protection and supervision for fourteen or fewer children in the provider's own home, for periods of less than twenty-four hours per day, while the parents or guardians are away, and is either a large family day care home or a small family day care home.

"Law enforcement officer" means a member of the City of Alturas Police Department.

"Marijuana" shall have the same meaning as that set forth in the California Health and Safety Code, as may be amended from time to time.

"Medical marijuana" means marijuana that has been recommended by a licensed physician in strict accordance with the California Health and Safety Code, commonly referred to as the Compassionate Use Act and the Medical Marijuana Program, as may be amended from time to time.

"Primary caregiver," as defined in the California Health and Safety Code, as may be amended from time to time.

"Qualified patient," as defined in the California Health and Safety Code, as may be amended from time to time.

"Residence" means a legal dwelling unit.

"School" means an institution of learning for minors, whether public or private, offering a regular course of instruction required by the California Education Code. This definition includes an elementary school, middle or junior high school, senior high school, or any special institution of education for persons under the age of eighteen years, whether public or private.

(Ord. No. 505, § 1, 1-26-2016)

The cultivation of medical marijuana shall be allowed only as part of a legally established dwelling unit pursuant to the standards included in this chapter.

(Ord. No. 505, § 1, 1-26-2016)

(a) Except as provided in section 13.2-9, medical marijuana cultivation may be undertaken only by a qualified patient who must occupy the residence on the parcel proposed for cultivation as their primary residence.

(b) A qualified primary caregiver, as defined, may undertake cultivation of medical marijuana on behalf of his/her qualified patient(s), but only on a parcel containing the primary caregiver's or qualified patient's primary residence.

(c) Medical marijuana cultivation shall occur only as an accessory use to a legally established residence.

(d) Separation Distances. No outdoor cultivation shall be allowed on property located within five hundred feet of a school, day care center, day care home, recreation center, youth center, library or a public park. The distance shall be measured in a straight line from any parcel line of the real property on which outdoor cultivation occurs to the parcel line of the real property on which the facility, building, or structure, or portion of the building or structure, or portion of the building or structure, in which the above-listed use occurs or is located.

(Ord. No. 505, § 1, 1-26-2016)

(a) Outdoor Cultivation Standards.

(1) The cultivation area shall not exceed the following limits:

(2) Outdoor cultivation areas shall be fully enclosed with a fence that shall satisfy all of the following specifications:

a. Fencing shall be opaque, solid and satisfy the requirements of the City of Alturas Municipal Code section 28.41.060

b. Fencing shall have a smooth exterior surface that is not equipped with steps or other provisions for climbing.

c. Fencing and Setbacks for fences shall be pursuant to the City of Alturas Zoning Ordinance with the exception that outdoor cultivation must be surrounded by fencing no less than a height of six feet.

d. Cultivation areas shall not be covered with plastic or cloth, except shade cloth may be used on the inside of the fence.

e. The fence shall fully enclose the immediate cultivation area unless a perimeter fence around the entire property satisfies the fencing/screening requirements of this chapter.

f. Should the medical marijuana grow higher than the fence, the plants shall be trimmed or tied back so as not to extend higher than the fence.

g. The fence shall be adequately secured to prevent unauthorized entry and shall include a locking gate that shall remain locked at all times unless a qualified patient or primary caregiver is present within the cultivation area.

h. Fencing shall not violate any other provision of state or local law regarding height or location.

(b) Indoor Cultivation Standards.

(1) No cultivation shall be allowed within a residence.

(2) The maximum canopy area for cultivation of medical marijuana inside a garage(s) or accessory building(s) shall not exceed a combined total of one hundred square feet.

(3) The use of a garage or detached accessory building for cultivation of medical marijuana shall not reduce parking required per the City of Alturas Municipal Code sections 28.45.010 through 28.45.020 Division 7 Parking Standards.

(4) All buildings used for the cultivation of medical marijuana shall be provided with locking doors.

(5) Gas products (CO 2 , butane, etc.) for medical marijuana cultivation or processing are prohibited.

(6) Medical marijuana cultivation lighting shall not exceed one thousand two hundred watts unless a licensed electrical contractor certifies in a form acceptable to the building official that the additional lighting loads meet the requirements of the currently adopted California Electrical Code. Lighting shall conform to all applicable state and local laws.

(7) Buildings utilized for cultivation shall comply with the California Building Code requirements pertaining to natural and mechanical ventilation or as otherwise determined by the Building Official or his/her designee. Cultivation shall not create an odor, humidity or mold problem on the subject property or adjacent properties.

(8) Unless otherwise exempt from the requirements of the California Building Code, the building utilized for cultivation shall be legally constructed with a building permit. Illegally constructed buildings and those constructed prior to the requirement for building permits shall be brought into compliance with the most recently adopted California Building Code as inspected by the building official pursuant to an approved building permit. All electrical and plumbing improvements shall be installed pursuant to an approved building permit.

(c) General Cultivation Standards.

(1) The following minimum setbacks apply to outdoor cultivation areas and those located within enclosed accessory buildings:

a. Front yard: Cultivation areas shall not be located forward of the rear foundation of the main residence.

b. Side yards: Fifteen feet.

c. Rear yards: Fifteen feet.

d. Minimum distance from the nearest residence which is not located on the same parcel: Thirty feet.

(2) There shall be no exterior evidence from a public right-of-way or publicly traveled private road of medical marijuana cultivation operations, either indoor or outdoor.

(Ord. No. 505, § 1, 1-26-2016)

(a) Medical marijuana cultivation shall not adversely affect the health or safety of nearby residents by creating dust, glare, heat, noise, noxious gasses, odor, smoke, traffic, vibration, or other impacts, or be hazardous due to use or storage of materials, processes, products or wastes.

(b) It is hereby declared to be unlawful for any person owning, leasing, occupying or having charge by possession of any property within the city to create a public nuisance in the course of cultivating medical marijuana in any location. A public nuisance may also be deemed to exist if such activity is determined to be related to the cultivation of marijuana and produces:

(1) Odors which are disturbing to people residing or present on adjacent or nearby property or areas open to the public;

(2) Repeated responses to the property from law enforcement officers (more than three times in a one-year period);

(3) Repeated disruption to the free passage of persons or vehicles in the neighborhood (more than three times in a one-year period) as reported to law enforcement officers or the city code enforcement officer;

(4) Excessive noise which is disturbing to people on adjacent or nearby property or areas open to the public; and

(5) Any other impacts which adversely affect the health, safety or general welfare of people on adjacent or nearby property or areas open to the public.

(c) The written affirmation by two persons, not related and having separate residences, stating that their peace and quiet is unreasonably disturbed as a direct result of cultivation activities shall be prima facie evidence of a violation of this section.

(d) Nothing in this chapter shall be construed as a limitation on the city's authority to abate any nuisance which may exist from the planting, growing, harvesting, drying, processing or storage of marijuana plants or any part thereof from any location, indoor or outdoor, including from within a fully enclosed and secure building.

(e) All medical marijuana cultivation shall be subject to the City of Alturas Municipal Code section 13.2-10 Cultivation Standards and the State Housing Code (California Health and Safety Code), and other applicable provisions of local and state law.

(Ord. No. 505, § 1, 1-26-2016)

The provisions of this chapter shall not be construed to protect the property owner(s) of record for each legal parcel associated with the cultivation of medical marijuana, participants in the cultivation of medical marijuana, and members of collectives and/or cooperatives associated with the cultivation of medical marijuana, from prosecution pursuant to any laws that may prohibit the cultivation, sale, and/or possession of controlled substances. Moreover, cultivation, sale, possession, distribution, and use of marijuana remain violations of federal law as of the date of adoption of the ordinance creating this chapter and this chapter is not intended to, and does not protect any of the above described persons from arrest or prosecution under those federal laws.

The property owner(s) of record for each legal parcel associated with the cultivation of medical marijuana, participants in the cultivation of medical marijuana, and members of collectives and/or cooperatives associated with the cultivation of medical marijuana, assume any and all risk and any and all liability that may arise or result under state and federal criminal laws from the cultivation of marijuana. Further, to the fullest extent permitted by law, any actions taken under the provisions of this section by any public officer or employee of the City of Alturas, shall not become a personal liability of such person or the liability of the City of Alturas.

(Ord. No. 505, § 1, 1-26-2016)