Kings County Municipal Code Div. 2 Medical Marijuana

(a) This section contains exceptions to criminal liability for violations of this article. The restrictions contained herein apply to the maximum extent allowed under state law. Nothing contained herein shall be deemed to permit anything otherwise declared by this article to be a nuisance, so that cultivation, use, or possession of marijuana may still constitute a nuisance within the unincorporated area of Kings County, even if done in conformance with this section.

(b) Cultivation of marijuana for personal medicinal use by a qualified patient or his or her primary caregiver is exempt from criminal liability under section 14-51, provided that such cultivation occurs only within a secured, locked and fully enclosed structure on the patient or primary caregiver's personal residence as allowed by and consistent with California Health and Safety Code Section 11362.5 et seq. Notwithstanding the provisions of California Health and Safety Code Section 11362.777, subdivision (g), although the cultivation area should not exceed 100 square feet, a qualified patient or primary caregiver may cultivate no more marijuana than is necessary to meet the patient's medical needs, so that a smaller area restriction may apply. There shall be a rebuttable presumption that a patient requires less than six mature or 12 immature marijuana plants for medical purposes, pursuant to Health and Safety Code Section 11362.77, subdivision (a). For reference purposes only, it is noted that a single marijuana plant can produce up to one pound of marijuana, which is enough to produce approximately 800 marijuana cigarettes, and a single dose of marijuana can affect cognitive functioning for as long as three hours or more, so that six plants can produce enough marijuana to keep an individual continuously intoxicated during waking hours for up to three years. As used herein, the term "locked and fully enclosed structure," means a structure that is locked and reasonably secure from intruders from all sides, including from the top, and that is designed in such a manner so that the contents of the structure are not visible from outside the property whereupon cultivation is occurring.

(c) Consistent with California Health and Safety Code Section 11362.5 et seq., use and possession of marijuana by a qualified patient, and possession by a primary caregiver, is exempt from criminal liability under section 14-51 if all of the following circumstances are true:

(1) The use or possession occurs only in the qualified patient's private residence or otherwise on private property with the permission of the person legally in possession thereof, provided that possession by a primary caregiver of a medically appropriate amount of marijuana solely for delivery directly to a qualified patient for personal medical use, and done in a manner that otherwise satisfies the requirements and purposes of this subdivision, also falls within the exception to criminal liability provided for herein.

(2) The use or possession is for personal, medical use only. The qualified patient may not engage in use that is primarily social or recreational, and may not use or possess more marijuana than is necessary to meet his or her medical needs. Neither may the qualified patient share, donate, transfer, or otherwise provide marijuana to any other person. It shall be presumed that the gathering of a qualified patient to use or possess marijuana at the same time and location as another individual who is using, possessing, or under the influence of marijuana, or who intends imminently to use, possess, or be under the influence of marijuana, is primarily for social or recreational purposes. This presumption may be rebutted by clear and convincing evidence to the contrary.

(3) The use or possession does not threaten the health, safety, or welfare of any other individual, and in particular poses no risk of child endangerment.

(d) An individual purporting to be a qualified patient or primary caregiver who seeks to rely on any exception to criminal liability provided for herein shall have the burden of establishing the exception. Although no single factor shall be dispositive, relevant evidence may include the following: an explanation of the individual's activities that is credible in view of all surrounding circumstances; possession of an identification card issued pursuant to the Medical Marijuana Program, enacted at California Health and Safety Code Section 11362.7 et seq.; a copy of a doctor's recommendation; and, in the case of a primary caregiver, a written note from a qualified patient confirming the caregiver's status.

(e) A determination by a court of competent jurisdiction that the exceptions to criminal liability provided for in subdivisions (b) and (c) of this section are drawn too narrowly to comport with state law shall not be construed to impair the ability of the county to enforce this section in its entirety under the county's land use and nuisance abatement authority. Pursuant to California Penal Code Section 373a, failure to abate upon proper notice anything declared herein to be a nuisance is a misdemeanor.

(Ord. No. 677, § 2, 10-4-16)

(a) In 1996, the voters of the State of California approved the Compassionate Use Act (CUA), which is codified in Health and Safety Code Section 11362.5.

(b) The intent of the CUA was to ensure that seriously ill Californians who are in need of marijuana for medical purposes are not subject to criminal prosecution. The CUA further provides that "nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, or to condone the diversion of marijuana for non-medical purposes."

(c) In 2004, the legislature enacted the "Medical Marijuana Program" (MMP), which is codified in Health and Safety Code Section 11362.7 et seq., to clarify the scope of the CUA, facilitate the prompt identification of qualified patients and primary caregivers, avoid unnecessary arrest and prosecution of these individuals, provide needed guidance to law enforcement officers, promote uniform and consistent application of the CUA, and enhance access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.

(d) Health and Safety Code Section 11362.83 expressly allows cities and counties to adopt and enforce ordinances that are consistent with the MMP. Section 11362.83 was amended by Assembly Bill 1300 (approved by the governor on August 31, 2011) to specifically allow cities and counties to adopt and enforce ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective, as well as the civil and criminal enforcement of such an ordinance.

(e) The Federal Controlled Substance Act (CSA), 21 U.S.C. § 801 et seq., classifies marijuana (spelled "marihuana" in the Act) as a Schedule I drug meaning that it has a high potential for abuse, that it has no currently accepted medical use for treatment in the United States, and that it has not been accepted as safe for use under medical supervision; and therefore it is unlawful to cultivate, manufacture, distribute, dispense, or possess marijuana.

(f) The CUA and the MMP primarily address the criminal law, providing qualified patients and primary caregivers with limited immunity from state criminal prosecution under certain identified statutes. Courts repeatedly have upheld the power of local communities to use their land use authority to regulate or ban activities or land uses involving medical marijuana.

(g) In 2015, the legislature enacted the Medical Marijuana Regulation and Safety Act (MMRSA), which amended the MMP and added provisions to the Business and Professions Code, codified at Section 19300 et seq. to: (1) require licensure for commercial cannabis activities, and (2) to phase out the use of cooperatives and collectives as a means to cultivate and distribute medical marijuana to patients. The MMRSA includes numerous protections that preserve traditional local land use authority, including protections found at California Health and Safety Code Section 11362.777, and California Business and Professions Code Sections 19315, 19316, 19320, 19322, 19330, and 19340.

(h) Although California Health and Safety Code Section 11362.777, subdivision (a), enacted as part of the MMRSA, declares marijuana to be an agricultural product, the language is clear that this designation is solely for purposes of that statute. Additionally, California Business and Professions Code Section 19300.5, subdivision (s), is clear that "edible cannabis product[s]" are neither food nor medicine. The Kings County Development Code defines "agriculture" at section 401 of the code to include only "legal practices for the cultivation and tillage of the soil." (See also Kings County Development Code, sections 107.C, F, 113.A.7 [forbidding illegal land uses]; Kings County Ordinance Code, section 14-38(b) [declaring that a "lawfully established" agricultural practice is not a nuisance].) Because cultivation of marijuana is currently illegal under the CSA, marijuana is not an "agricultural product" for purposes of this Code or the Kings County Development Code. In light of these circumstances, together with the fact that nearly all of Kings County's groundwater basins are critically overdrafted, and locally available ground and surface water resources are needed for the production of food and fiber cultivated consistently with federal, state, and local law, the use of local water resources for the cultivation of marijuana is not a reasonable and beneficial use of those resources.

(i) Several neighboring communities have documented through law enforcement and media reports serious, adverse impacts associated with the cultivation, distribution and use of medical marijuana including increased crime, burglaries, robberies, violence, illegal sales and use of marijuana, and other negative secondary effects such as smoking marijuana in public areas, odor complaints and adverse impacts on businesses, all of which the County of Kings could reasonably anticipate experiencing as a result of any commercial cannabis activity. The issues surrounding the cultivation, distribution and use of medical marijuana are documented in the California Police Chiefs Association's Task Force on Marijuana Dispensaries "White Paper on Marijuana Dispensaries" (2009), the United States Department of Justice "The DEA Position on Marijuana" (2011), and the White House Office of National Drug Control Policy. The regulations in this division seek to protect the health, safety and welfare of the residents of Kings County while still providing reasonable accommodation for the cultivation, distribution and use of medicinal marijuana within the unincorporated territories of Kings County in accordance with state law.

(j) Kings County has received numerous complaints from the general public regarding the cultivation, use and distribution of marijuana within the county including concerns for personal safety and inhalation of second hand marijuana smoke. Kings County, as well as neighboring counties of Fresno and Tulare, have each experienced homicides and home invasions related to the cultivation or dispensing of marijuana.

(k) Allowing commercial cannabis activities poses a threat to the public health, safety and welfare of the residents of Kings County. Adopting the regulations contained in this division are necessary and appropriate to maintain and protect the public health, safety and welfare of the residents of Kings County, and by adopting the regulations contained in this division, the board anticipates a significant reduction in the aforementioned harms threatened by the unregulated cultivation, distribution and consumption of marijuana in the unincorporated areas of Kings County.

(l) The county recognizes the law enforcement dilemma created due to the conflict between the CSA and the state CUA, MMP, and MMRSA, and that federal courts have determined that, despite the CUA, MMP, and MMRSA, marijuana has no accepted medical uses and therefore the federal government may enforce the CSA. (Gonzales v. Raich (2005) 545 U.S. 1.) While the county in no manner intends or undertakes by adoption of this division to enforce federal law, the county is concerned about interfering with federal law enforcement efforts.

(m) Pursuant to 18 U.S.C. § 2(a), it is a federal crime to aid, abet, counsel, command, induce, or procure the commission of a violation of federal criminal law. The board of supervisors therefore finds that it is not in the public interest for the County of Kings to facilitate commercial cannabis activities in violation of federal law through a regulatory scheme that expressly permits and licenses such activities.

(n) Nothing in this division shall be construed to allow the use of marijuana for non-medical purposes, or allow any activity relating to cultivation, distribution, or consumption of marijuana that is otherwise illegal under state or federal law. No provision of this division shall be deemed a defense or immunity to any action brought against any person by the Kings County District Attorney, the California Attorney General, or the United States of America.

(Ord. No. 677, § 2, 10-4-16)