Division X — ENFORCEMENT AND PENALTIES

Editor's note— ORD-21-0023 § 13, adopted July 13, 2021 renumbered Div. IX, §§ 5.92.1410—5.92.1495 as Div. X, §§ 5.92.1510—5.92.1595.

A.

It is unlawful for any person to violate any provision, or to fail to comply with any of the conditions or requirements of this Chapter, or any regulation adopted pursuant to it.

B.

Separate violation. Every day, during any portion of which, any violation of this Chapter is committed, continued, or allowed to continue is a separate offense and is subject to all remedies and enforcement measures authorized by this Code.

C.

Every cannabis plant, including both immature and mature plants, cultivated in violation of this Chapter by an illegal cannabis operation constitutes a separate violation subject to the penalties of this Chapter.

D.

Paying a fine or serving a jail sentence does not relieve any person from responsibility for correcting any condition that violates any provision of this Chapter.

E.

Whenever in this Chapter any act or omission is made unlawful, it shall include causing, permitting, aiding, abetting, suffering, or concealing the fact of such act or omission.

F.

Violation of any provision of this Chapter shall be considered a strict liability; accordingly, the City shall not be required to prove knowledge, criminal intent, or any other mental state to establish a violation of this Chapter.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

The remedies provided for in this Chapter are not mutually exclusive. Pursuit of any one remedy does not preclude the City from availing itself of any or all available administrative, civil, or criminal remedies, at law or equity. The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.

B.

This Chapter does not limit the City's additional remedies for recovering taxes or damages in accordance with any applicable law including, without limitation, cannabis business taxes owed by an unlawful Commercial Cannabis Business pursuant to Chapter 3.80 of this Code.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

Any violation of the provisions of this Chapter is hereby deemed unlawful and a public nuisance.

B.

As a nuisance per se, any violation of this Chapter is subject to any of the following remedies, including, without limitation: injunctive relief, revocation of applicable permits or licenses, revocation of the certificate of occupancy for the real property where the violation occurred, disgorgement and payment to the City of all monies unlawfully obtained, costs of abatement, costs of investigation, attorney fees, and any other relief or remedy available at law or equity.

C.

For purposes of notification of nuisance and abatement pursuant to Section 9.37.100 of this Code, a reasonable time limit for a property owner or person to correct or abate the nuisance of an illegal cannabis operation is no less than five (5) calendar days.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

Liability of employees and agents. In construing and enforcing the provisions of this Chapter, the act, omission, or failure of an agent, officer, representative, or other person acting for or employed by an Adult- Use Cannabis Business, within the scope of his or her employment or office, will be in every case be deemed the act, omission, or failure of the Adult-Use Cannabis Business.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

No property owner in charge of, or in possession of, any real property within the City shall cause, permit, maintain, conduct, or otherwise suffer or allow a public nuisance as defined in this Chapter to exist.

B.

It is the duty of every property owner, and person that controls any real property or interest therein, within the City to remove, abate, and prevent the reoccurrence of the public nuisance upon such real property. Such duty of the property owner exists regardless of whether the property owner is in actual possession of

his or her real property, and includes an obligation to act to evict or otherwise remove an illegal cannabis operation who illegally exists or creates a public nuisance upon the property owner's real property.

C.

In addition to any abatement costs incurred by the City for closing or removing an illegal cannabis operation from private real property, failure of a property owner to voluntarily abate an illegal cannabis operation after notification by the City shall result in the penalties set forth in this Chapter.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

Liability of costs. In any enforcement action brought pursuant to this Chapter, whether by administrative proceedings, judicial proceedings, or summary abatement, every person who causes, suffers, maintains, or permits any illegal cannabis operation and/or operation to exist, or remain in violation of this Chapter, is liable for all actual costs incurred by the City, including, but not limited to: all actual costs for inspection, enforcement, revocation, suspension, abatement, or any other actual costs incurred to undertake, or to cause or compel any responsible party to undertake, any abatement action in compliance with the requirements of this Chapter, including costs of litigation and reasonable attorney's fees, whether those costs are incurred prior to, during, or following enactment of this Chapter.

B.

Any person may abate an illegal cannabis operation or cause it to be abated at any time prior to commencement of abatement by, or at the direction of, the City Manager. Abatement prior to the hearing does not absolve any person from paying costs, fees, and administrative penalties that accrued up to the date of abatement. Proof of Abatement shall be provided to the Hearing Officer(s) at the time of hearing.

C.

Liability for cost of destruction. If required by State law, regulation, or court order to destroy any cannabis goods associated with a violation of this Chapter, a violator is responsible for the cost of the destruction of cannabis goods associated with said violation.

D.

Failure to pay fines and fees. Failure to pay a fine or penalty within thirty (30) calendar days of the date of assessment may result in penalties, suspension, or revocation of the permit, unless the citation is being appealed. The full amount of any assessed fine or penalty may be added to the fee for renewal of the permit.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

Noncompliance. Failure to comply with any of the provisions of this Chapter will constitute grounds for suspension, denial, or revocation of the permit. The noticing and hearing requirements for suspension or revocation of the permit shall be governed by the provisions of Chapter 5.06 of this Code.

B.

Cease activity. No person may conduct any business or activity regulated by this Chapter while an application for a permit is pending, at any time after a permit denial or revocation, or while a permit is suspended.

C.

Grounds for denial, revocation, or suspension of permit. In addition to the provisions of Chapter 5.06 of this Code, the Director of Financial Management may deny any application for a permit, or revoke or suspend any permit, on the following grounds:

A permit application does not satisfy the minimum qualifications or fails to comply with the applicable requirements of this Chapter.

Failure to comply with any of the terms and conditions attached to the permit at the time of approval.

Any act or omission that violates the requirements of this Code, including any rule, regulation, condition, or standard adopted pursuant to this Chapter, or any other applicable State or local rule, law, or regulation.

Any act or omission that results in the denial, revocation, or suspension of the permittee's State license.

Failure to renew the permittee's State license.

The permit was granted, in whole or in part, based on any written or oral misrepresentation or omission of a material statement in the permit application.

Conducting a commercial cannabis activity in a manner that constitutes a nuisance, where the permittee has failed to comply with reasonable conditions to abate the nuisance.

Conviction for any controlled substance felony by an owner after a permit has been issued.

A person has been, or is, prohibited from having an ownership interest in an Adult-Use Cannabis Business pursuant to Section 5.92.265.

A person has committed a deliberate or willful violation of an applicable law, or applicable rule and regulation related to commercial cannabis activity.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

Any applicant pursuant to this Chapter whose application for an Adult-Use Cannabis Business Permit, whose application for such permit has been denied, shall be notified in writing of the denial and their right to file an appeal, pursuant to Section 5.06.030 of this Code, within ten (10) calendar days after the date of mailing of the Notice of such denial.

B.

Any written request for an appeal of a permit denial pursuant to this Chapter shall include details regarding the denial and the specific ground(s) on which the dispute of the denial is based. At the time of filing the notice of appeal, the applicant shall pay to the Director of Financial Management the fee set by resolution of the City Council for appeals hereunder.

C.

If the written request is filed within the time period specified, within thirty (30) days following the filing of said written request, the City shall set a hearing to be held not less than ten (10) days nor not more than thirty (30) days thereafter, and such hearing may for good cause be continued by the City.

D.

The hearing shall be held in accordance with Chapter 2.93 of this Code, except that the matter shall be automatically referred to the City Clerk for selection of a Hearing Officer, without the City Council's referral, in accordance with Subsection 2.93.050.B of this Code.

E.

Failure to file the written request within the time period specified shall result in waiver of any right to dispute the denial of an application for an Adult-Use Cannabis Business Permit pursuant to this Chapter. Failure of an appellant or their authorized representative to appear at any noticed hearing shall constitute an abandonment of the hearing appeal and shall constitute a failure to exhaust administrative remedies.

F.

Right to recover costs. In the event a civil action is initiated by the City to enforce any decision under this Section, and a judgment is entered to enforce said decision, any person against whom the order of enforcement has been entered shall be liable to pay the City's total costs of enforcement, including reasonable attorney fees.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

The City Manager may consider the following factors in deciding whether a permit should be suspended or revoked in accordance with this Chapter, as applicable:

The nature and severity of the acts, offense, or crimes under consideration.

Any corrective action taken by the permittee.

Prior violations at the permitted premises by the permittee and the effectiveness of prior corrective action.

Previous sanctions imposed against the permittee.

The number and/or variety of current violations.

The likelihood of recurrence.

All circumstances surrounding the violation.

Whether the violation was willful.

Any actual or potential harm to the public.

The length of time the permit has been held by the permittee.

Evidence of expungement proceedings under Penal Code Section 1203.4.

Any other factor that makes the situation unique or the violation of greater concern, with respect to the permittee or the permitted premises.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

Whenever an application for a permit is denied, no other application by such permittee will be considered for a period of one (1) year from the date of the denial of an application, with an exception granted to any applicant whose Adult-Use Business License Application was denied solely because the applicant's proposed premises does not comply with the sensitive use buffers in subsections (1) through (4) of Section 5.92.420.A.

B.

Whenever a permit has been revoked, no other similar application by such permittee for an Adult-Use Cannabis Business Permit shall be considered for a period of five (5) years from either the date the notice of the permit revocation was mailed or the date of the final decision of the City Council to revoke the permit, whichever is later.

C.

The provisions of subsections (A) and (B), above, apply to all of the following:

Any individual whose permit was revoked or whose application was denied who later becomes a director or officer of a corporation, profit or nonprofit, or a member of a partnership or a person owning or possessing any portion of the shares of a corporation seeking to obtain a new permit.

A corporation, profit or nonprofit, whose permit was revoked or application was denied, to any of its directors or officers or to any person who owned any portion of its shares, who attempts by way of a new corporation or using their individual names or becoming a member of a partnership or a director or officer or a person owning or possessing any portion of the shares in another corporation seeking to obtain a new permit.

D.

Effect of suspension, revocation, or denial on Co-Located Cannabis Business Permits.

Suspension of a permittee's co-located Adult-Use Cannabis Business Permit or Medical Marijuana Business Permit, shall immediately suspend the permittee's other co-located permit for the same premises and permittee's ability to operate a Commercial Cannabis Business within the City, until the City reinstates or reissues permittee's Adult-Use Cannabis Business Permit and Medical Marijuana Business Permit.

Revocation or termination of a permittee's co-located Adult-Use Cannabis Business Permit or Medical Marijuana Business Permit, shall also immediately revoke, terminate, or surrender permittee's co-located permit for the same premises, and permittee's ability to operate a Commercial Cannabis Business from that premises.

Surrender of the permittee's co-located Medical Marijuana Dispensary permit shall also immediately revoke, terminate, or surrender the permittee's co-located Adult-Use Cannabis Dispensary Permit for the same premises, and permittee's ability to operate a Commercial Cannabis Business from that premises.

E.

Effect of suspension, revocation, or denial on State licenses.

Suspension of a permittee's State license shall immediately suspend the permittee's Adult-Use Cannabis Business Permit, any co-located Medical Marijuana Business Permits for the same premises, and permittee's ability to operate a Commercial Cannabis Business within the City, until the State, or its respective department or division, reinstates or reissues permittee's State license.

Revocation, termination, or surrender of a permittee's State license shall immediately suspend the permittee's Adult-Use Cannabis Business Permit, any co-located Medical Marijuana Business Permits for the same premises, and permittee's ability to operate a Commercial Cannabis Business within the City.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

Any person who violates any provision of this Chapter is guilty of a misdemeanor, and upon conviction thereof, may be punished by a fine of not more than one thousand dollars ($1,000.00), or by imprisonment in the City or county jail for a period not exceeding six (6) months, or by both such fine and imprisonment.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

Administrative citations. In addition to all other legal remedies at law, violations of this Chapter and building, health, and safety violations caused as a result of a violation of this Chapter are enforceable using the administrative citation procedures set forth in Chapter 9.65 of this Code.

Administrative citations for violations of this Chapter shall be set by resolution of the City Council pursuant to Chapter 9.65 of this Code for any violation of the Long Beach Municipal Code that could potentially be criminally cited as an infraction.

Fines for illegal cannabis operations shall be set by resolution of the City Council pursuant to Chapter 9.65 of this Code.

B.

Administrative penalties imposed pursuant to this Section also constitute a personal obligation on each person who causes, permits, maintains, conducts, or otherwise suffers or allows the nuisance to exist. In the event administrative penalties are imposed pursuant to this Section on two (2) or more persons for the same violation, all such persons are jointly and severally liable for the full amount of the penalties imposed.

C.

In addition to any other remedy, the City may prosecute a civil action through the City Attorney to collect any administrative penalty imposed pursuant to this Chapter.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

As an alternative, or in addition to any other remedy, the City Attorney may enforce the provisions of this Chapter against any illegal cannabis operation and/or property owner in any court of competent jurisdiction. The City Attorney may apply to such court for an order seeking injunctive relief to abate or remove any nuisance caused, maintained, or permitted by an illegal cannabis operation and/or property owner, to restrain any illegal cannabis operation and/or property owner from taking any action contrary to the provisions of this Chapter or other applicable law; and/or to require any illegal cannabis operation and/or property owner to take any action to comply with this Chapter or other applicable law.

B.

In any civil court action brought by the City Attorney pursuant to this Section in which the City succeeds in obtaining an order from the court, the City shall be entitled to recover from an illegal cannabis operation and/or property owner all of the City's costs of investigation, enforcement, abatement, destruction, and litigation, including but not limited to attorneys' fees.

C.

Civil penalties.

The City is entitled to recover civil penalties against an illegal cannabis operation and/or property owner a maximum amount of five thousand dollars ($5,000.00) per violation for each day an illegal cannabis operation is operated, permitted, or maintained on the subject property, and the court may order the destruction of cannabis associated with that violation in accordance with California Health and Safety Code Section 11479.

In assessing the amount of a civil penalty, the court shall consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to, the following:

a.

The nature and seriousness of the violation;

b.

Any economic benefit gained through the violation;

c.

The number of violations;

d.

The length of time over which the violation occurred;

e.

The willfulness of the defendant's violation; and

f.

The defendant's assets, liabilities, and net worth.

D.

The City Attorney is authorized, without further direction from the City Council, to institute any civil actions permitted pursuant to this Section.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

Notwithstanding any other provision of this Chapter to the contrary, the costs incurred by the City in the abatement of a violation or nuisance may be placed against any privately owned and affected property as either a nuisance abatement lien or a special assessment lien pursuant to California Government Code Section 38771 et seq., as amended from time-to-time, or a lien pursuant to California Government Code Section 54988, as amended from time to time.

B.

Liens. All actual costs required by this Section constitute a lien upon the property upon which the Adult- Use Cannabis Business is situated. The lien for any inspection, enforcement, or abatement costs may attach thirty (30) days after the responsible parties are notified of the costs, and will remain until the costs are paid or the premises is sold in payment thereof.

C.

Lien enforcement. The City may enforce a lien under this Chapter in any manner permitted by law, including filing a civil action either to foreclose on its liens or to obtain a money judgment or both, or pursuing non- judicial foreclosure.

D.

Conversion of liens. The City may elect, upon thirty (30) calendar days written notice to all known and record owners of the privately owned and affected property, to convert any nuisance abatement lien authorized by this Chapter to a special assessment lien, or vice versa. Costs recoverable under this Chapter may include those categories of costs and fees set forth in Civil Code Section 3496, regardless of the type of nuisance involved.

E.

Special Assessment. If the property is specially assessed, said assessment may be collected at the same time and in the same manner as ordinary real property taxes are collected and will be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary real property taxes. All laws applicable to the levy, collection, and enforcement of real property taxes are applicable to the special assessment.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

The City may, in its sole discretion, take any action as specified in this subsection.

B.

If the City discovers an illegal cannabis operation is currently and/or was operating within the previous sixty (60) days at or on a property, or any portion thereof, without valid State or City permits or licenses the City may take action as specified herein. The City shall notify the property owner in writing of their right to file, within fifteen (15) days after the date of mailing of the Notice, written request of a hearing to the City

disputing the alleged illegal cannabis operation. Such written request shall set forth the specific ground(s) on which the dispute is based and the property owner shall pay to the City at the time of filing said written request a filing fee in an amount to be set by resolution of the City Council.

C.

Failure to file the written request within the time period specified shall result in waiver of any right to dispute the allegation of operation of an illegal cannabis operation at the subject property. In the event of such waiver, no Commercial Cannabis Business, whether licensed or non-licensed, shall be permitted to operate at the subject property for a period of one (1) year from the 16th day after the date of mailing of the Notice.

D.

The illegal cannabis operation and/or property owner shall have the right of appeal as set forth in Section 5.92.1445.

E.

Whenever it has been determined that an illegal cannabis operation was and/or is in operation, no Commercial Cannabis Business, whether licensed or non-licensed, shall be permitted to operate at the subject property for a period of one (1) year from the effective date of such determination.

F.

The prohibitions contained in this Section are sufficient grounds to deny any application for operation of a Commercial Cannabis Business or cannabis operation at the subject property received within the one (1) year time.

G.

In the event the City revokes a Property Owner's Non-Residential Rental Business License for violating this Chapter, no Commercial Cannabis Business or cannabis operation, whether licensed or non-licensed, is permitted to operate at the subject property for a period of five (5) years from the effective date of revocation of the Non-Residential Rental Business License. Such revocation is sufficient grounds to deny any application for operation of a Commercial Cannabis Business or cannabis operation at the subject property received within the five (5) year period. This prohibition shall also remain in effect in the event a property owner (or an entity owned by or affiliated with such property owner) obtains another Non- Residential Rental Business License anytime within the five (5) year period for the subject property.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

A.

To the maximum extent permitted by law, and in accordance with the processes thereof, the City may discontinue utility services to any premises upon which an illegal cannabis operation is operating.

B.

Prior to the disconnection of utility services, the City must notify, wherever possible, the property owner and occupant of the building, structure, or premises upon which the illegal cannabis operation is operating, of the decision to disconnect the utility service(s) and the reason(s) for service suspension at least seven (7) calendar days before taking such action, unless a different period of notification is mandated by law; provided that the City's Building Official may dispense with any attempt at prior notification if, in the sole discretion of the Building Official, the nature or severity of any apparent dangerous hazard justifies such disconnection in accordance with other provisions of this Code.

C.

In the event utilities are disconnected, the Building Official must notify the owner or occupant of the building, structure, or premises in writing of the disconnection as soon as practical thereafter.

D.

Disconnected utilities shall not be re-established until an inspection has been made by the City's Building Official and the Building Official has determined that the unlawful illegal cannabis operation has ceased operations; that any imminent hazard has been abated or eliminated (if applicable); that the building complies with applicable law; and that any applicable fees for disconnection, reconnection, penalties, and/or other related services have been paid.

E.

Removing or defacing a notice posted in relation to this provision shall constitute a separate and distinct violation of this Chapter.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

The authority, powers, and duties of the Medical Marijuana Task Force, established pursuant to Section 5.90.260 of this Code, are limited exclusively to the provisions in Chapter 5.90 and shall not extend to any applicant, permittee, Adult-Use Cannabis Business, and/or Medical Marijuana Business electing to engage in commercial cannabis activity pursuant to this Chapter.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)

In the event, any provision in this Chapter is deemed invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision is ineffective only to the extent of such invalidity, illegality, or unenforceability.

(ORD-22-0015 § 4, 2022; ORD-21-0023 § 13, 2021; ORD-18-0015 § 6(Exh. F), 2018)