Santa Ana Municipal Code § 40-103 Operating standards

It is the purpose and intent of this article to regulate the collective distribution of medical marijuana at a commercial cannabis retail business in order to ensure the health, safety and welfare of the residents of the City of Santa Ana. The regulations in this article, in compliance with the Compassionate Use Act, the Medical Marijuana Program Act, and the California Health and Safety Code (collectively referred to as "State Law") do not interfere with a patient's right to use medical marijuana as authorized under State Law, nor do they criminalize the possession or cultivation of medical marijuana by specifically defined classifications of persons, as authorized under State Law. Under State Law, only qualified patients, persons with identification cards, and primary caregivers may cultivate medical marijuana collectively. Businesses operating as medical marijuana collectives shall comply with all provisions of the Santa Ana Municipal Code, State Law, the 2008 California Attorney General Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, and all other applicable local laws. Nothing in this article purports to permit activities that are otherwise illegal under state or local law.

(Ord. No. NS-3026, § 7, 10-4-22, eff. 1-1-23)

(a) "Medical marijuana collective" or "cooperative" or "collective" means any facility otherwise known as a commercial cannabis medicinal retail or retailer, or location where medical marijuana is made available and/or distributed by or to one (1) or more of the following: a primary caregiver, a qualified patient or a person with an identification card in strict accordance with California Health and Safety Code § 11362.5 et seq., as sometimes amended. This term shall include any legal form of business recognized in the State of California. A "medical marijuana collective" shall not include the following uses, as long as the location of such uses are otherwise regulated by this Code or applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as such use complies strictly with applicable law including, but not limited to, Health and Safety Code Section 11362.5 et seq.

(b) "Identification card" shall have the same definition as that contained in Health and Safety Code § 11362.7 et seq., as sometimes amended.

(c) "Manager" means any person responsible for the establishment, organization, supervision, or oversight of the operation of a Collective, including, but not limited to, members who perform the functions of president, vice-president, director, operating officer, financial officer, secretary, or treasurer. Ability to control one (1) or more of the following functions shall be prima facie evidence that such person is a manager:

(1) To hire, select, or separate employees or staff, including volunteers;

(2) To acquire facilities, furniture, equipment or supplies other than occasional replenishment of stock;

(3) To disburse funds of the business other than occasional expenditures for replenishment of stock; or

(4) To make, or participate in making, policy decisions relative to the operations of the business.

(d) "Marijuana" shall have the same definition as that contained in Health and Safety Code § 11018 as sometimes amended.

(e) "Medical marijuana" shall have the same definition as that contained in Health and Safety Code § 11362.5 et seq., as sometimes amended.

(f) "Primary caregiver" shall have the same definition as that contained in Health and Safety Code §§ 11362.5 and 11362.7, as sometimes amended.

(g) "Qualified patient" shall have the same definition as that contained in Health and Safety Code § 11362.5 as sometimes amended.

(h) "Private Residence" shall have the same definition as that contained in Health and Safety Code §§ 11362.2(5) and 17922. A recreational vehicle does not constitute a lawfully established structure for the purposes of this article.

(i) "Premises" means a single, legal parcel of property. Where contiguous legal parcels under common ownership or control, such contiguous legal parcels shall constitute a single "premises" for purposes of this chapter.

(j) "Marijuana Products" shall have the same definition as that contained in Health and Safety Code § 11018.1.

(k) "Marijuana Accessories" shall have the same definition as that contained in Health and Safety Code § 11018.2.

(l) "Personal Cultivation" shall mean the planting, growing, harvesting, drying, curing, grading or trimming of marijuana plants for personal use within a private residence or accessory structure to a private residence.

(m) "Fully enclosed and secure structure" means a space within a building, greenhouse or other structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, provides complete visual screening, and which is accessible only through one (1) or more lockable doors.

(n) "Dispensary" means a premises where medical cannabis or medical cannabis products, or devices for the use of medical cannabis or medical cannabis products are offered, either individually or in any combination, for retail sale, including an establishment that delivers, pursuant to Business and Professions Code § 19340, medical cannabis and medical cannabis products as part of a retail sale.

(Ord. No. NS-3026, § 7, 10-4-22, eff. 1-1-23)

The operating standards established in this article apply to any site, facility, location, use, cooperative or business currently operating in the City of Santa Ana, or which commences operations after the effective date of this article, that distributes, dispenses, stores, sells, exchanges, processes, delivers, or gives away, medical marijuana to qualified patients, health care providers, patients' primary caregivers, or physicians, pursuant to Health & Safety Code § 11362.5 (adopted as Proposition 215, the "Compassionate Use Act of 1996") or any state regulations adopted in furtherance thereof. Any collective in the City of Santa Ana shall operate in conformance with the operating standards set forth in this Code to assure that the operations of the collective are in compliance with California law and to mitigate the adverse secondary effects from operations of dispensaries.

(Ord. No. NS-3026, § 7, 10-4-22, eff. 1-1-23)

(a) No recommendations from a doctor for medical marijuana shall be issued on-site.

(b) A collective shall only dispense medical marijuana to qualified patients and their caregivers as defined by California Health and Safety Code § 11362.5 (Proposition 215). This shall include possession of an original valid doctor's recommendation, not more than one (1) year old, for medical marijuana use by the patient.

(c) A collective shall notify patrons of the following through posting of a sign in a conspicuous location:

(1) Use of medical marijuana shall be limited to the patient identified on the doctor's recommendation. Secondary sale, barter or distribution of medical marijuana is a crime and can lead to arrest.

(2) That loitering on and around the collective site is prohibited by California Penal Code § 647(e) and that patrons must immediately leave the site and not consume medical marijuana in the vicinity of the collective or on the property or in the parking lot.

(3) Forgery of medical documents is a felony crime.

(4) A warning that patrons may be subject to prosecution under federal marijuana laws.

(5) That the use of medical marijuana may impair a person's ability to drive a motor vehicle or operate machinery.

(d) A collective shall not provide marijuana to any individual in an amount not consistent with personal medical use

(e) Marijuana shall not be grown or cultivated at collective sites, except that cuttings of the marijuana plant may be kept or maintained on-site for distribution to qualified patients and primary caregivers as follows:

(1) The cuttings shall not be utilized by a collective as a source for the provision of marijuana for consumption on-site, however, upon provision to a qualified patient or primary caregiver, that person may use the cuttings to cultivate marijuana plants off-site for their own use and they may also return marijuana from the resulting mature plant for distribution by the collective.

(2) For the purposes of this paragraph, the term "cutting" shall mean a rootless piece cut from a marijuana plant, which is no more than six (6) inches in length, and which can be used to grow another plant in a different location.

(f) A collective shall comply with applicable provisions of the California Health and Safety Code §§ 11362.5 through 11362.83, inclusive.

(Ord. No. NS-3026, § 7, 10-4-22, eff. 1-1-23)

(a) Pursuant to Ordinance No. NS-2864, adopted December 9, 2014, the Director of Planning and Building shall prepare Cooperative/Collective registration application forms and a related administrative policy. Each collective interested in operating pursuant to this article may submit an application together with a non-refundable processing fee in an amount established by the City Council. Within sixty (60) days after the adoption of Ordinance No. NS-2864, the Director shall stop accepting applications and process all applications received.

(b) The Director or his or her designee shall have determined whether each application demonstrates compliance with this article. Each application that is in compliance with this article shall be placed on the "Qualified Registration Applicant List" and the Director shall notify the applicant in writing that it is a "Qualified Registration Applicant."

(c) Once all applications are processed, the Director shall have held an independent selection process ("lottery") in an open and public location and select twenty (20) applications. The twenty (20) applications chosen through the independent selection process (lottery) will be placed on the "Regulatory Safety Permit ("RSP") Eligibility List." Each applicant on the RSP Eligibility List may then choose to file an application for a RSP pursuant to section 40-9. All applicants identified on the RSP Eligibility List following the February 5, 2015 independent selection process (lottery) shall be required to concurrently: (1) File an application for an RSP and (2) Submit all required construction plans for plan check by the City by March 30, 2023, subject to the requirements of this Chapter and other applicable chapters of the Santa Ana Municipal Code, and be operational with sustained business activity within one hundred eighty (180) days of construction permit issuance. An extension may be issued for a period of time as may be reasonably required to affect upgrades, modifications, repairs, or other property issue mitigations as approved by the Director of Planning and Building or his or her designee. Failure to satisfy these requirements by that deadline will disqualify the applicant from the RSP Eligibility List and the Waitlist described in subsection (d). Relocation is permitted pursuant to Section 40-7 of this Chapter.

(d) Qualified Registration Applicants will appear on the "Qualified Registration Applicant List" in the order that they are selected during the independent selection process (lottery). This list is the Waitlist. The Waitlist will become active if (1) an applicant on the RSP Eligibility List is disqualified from that List; (2) a location appearing on the RSP Eligibility List becomes available; or (3) a location not appearing on the RSP eligibility list becomes available. A Qualified Registration Applicant's ability to move from the Waitlist to the RSP Eligibility List is determined by the applicant's proposed medical marijuana collective location and the applicant's position on the Waitlist.

(e) A Qualified Registration Applicant that moves from the Waitlist to the RSP Eligibility List must submit a completed RSP application within three (3) months following issuance of a written notice advising the applicant of that opportunity. Failure to submit a completed RSP application by that deadline will disqualify the applicant from the RSP Eligibility List and the Waitlist.

(f) The Director shall maintain the Waitlist and update it on an annual basis unless terminated pursuant to subsection 40-104 (g) through (j). A Qualified Registration Applicants on that Waitlist must submit a written request each year to maintain its status on the waitlist.

(g) Relocation of an existing and licensed medical marijuana collective or medical marijuana cooperative as defined in Article II of this Chapter that is operating in full compliance with the provisions of this Article is permitted subject to Section 40-7 of this Chapter.

(Ord. No. NS-3026, § 7, 10-4-22, eff. 1-1-23)

A medical marijuana collective shall maintain records at the location accurately and truthfully documenting:

(a) The full name, address, and telephone number(s) of the owner, landlord and/or lessee of the location;

(b) The full name, address, and telephone number(s) of all members who are engaged in the management of the collective and the exact nature of each member's participation in the management of the collective;

(c) The full name, address, and telephone number(s) of all patient members to whom the collective provides medical marijuana, a copy of a government-issued identification card for all patient members;

(d) The full name, address, and telephone number(s) of all primary caregiver members to whom the collective provides medical;

(e) All receipts of the collective, including, but not limited to, all contributions, reimbursements, and reasonable compensation, whether in cash or in kind, and all expenditures incurred by the collective for the cultivation of medical marijuana; and

(f) Proof of compliance with the California Attorney General Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use.

These records shall be maintained by the collective for a period of five (5) years and shall be made available by the collective to the police department and/or community preservation division upon request. If they are not produced as requested the city may seek a search warrant, subpoena, or court order. In addition to all other formats that the collective may maintain, these records shall be stored by the collective at the location in a printed format in its fireproof safe. Any loss, damage or destruction of the records shall be reported to the police department within twenty-four (24) hours of the loss, destruction or damage.

(Ord. No. NS-3026, § 7, 10-4-22, eff. 1-1-23)

Annual audits. No later than September 30 of every year, each licensed medical marijuana collective shall be liable to file with the city an independent audit or financial review of its operations of the previous calendar year. Provided, however, that licensed collectives which operate on a vertically or horizontally integrated basis as established in Chapter 21, Article XII of this Code, or that are co-located on shared premises may file a consolidated audit or independent financial review. The form and contents of the document shall be specified by the executive director of finance and management services, or his/her designee(s). The Executive Director of Finance and Management Services, or his or her designee(s) may waive this requirement for certain licensed collectives in accordance with guidelines established by the Finance and Management Services Agency.

(Ord. No. NS-3026, § 7, 10-4-22, eff. 1-1-23)

Any existing medical marijuana collective, dispensary, operator, establishment, or provider that does not comply with the requirements of this article must immediately cease operation until such time, if any, when it complies fully with the requirements of this article. No medical marijuana collective, dispensary, operator, establishment, or provider that existed prior to the enactment of this article shall be deemed to be a legally established use under the provisions of this article, and such medical marijuana collective, dispensary, operator, establishment, or provider shall not be entitled to claim legal nonconforming status.

(Ord. No. NS-3026, § 7, 10-4-22, eff. 1-1-23)

(a) It is unlawful for any person to:

i. Cause, permit or engage in the giving away of marijuana, or

ii. Own, establish, operate, use or permit the establishment or operation of a medical marijuana collective or cooperative, or to participate as an employee, contractor, agent, responsible person or volunteer of a collective or cooperative, except as provided in this article, and pursuant to any and all other applicable local and state laws.

iii. The prohibition in subsection (ii) above includes, renting, leasing, or otherwise permitting a medical marijuana business to occupy or use a location, vehicle, or other mode of transportation.

(b) It is unlawful for any person to cause, permit or engage in any activity related to medical marijuana except as provided in Health and Safety Code § 11362.5 et seq., and pursuant to any and all other applicable local and state laws.

(c) It is unlawful for any person to knowingly make any false, misleading or inaccurate statements or representations in any forms, records, filings or documentation required to be maintained, filed or provided to the City under this article, or to any other local, state or federal government agency having jurisdiction over any of the activities of collectives.

(d) It shall be the sole responsibility of the members engaged in the management of the collective to ensure that the collective is at all times operating in a manner compliant with all applicable state laws and this article. Nothing in this article shall be construed as authorizing any actions which violate state law with regard to the cultivation, transportation, provision, and sale of medical marijuana.

(e) Cultivation of Marijuana.

(1) Personal Cultivation. Individuals twenty-one (21) years of age or older may plant, cultivate, harvest, dry, or process up to six (6) living marijuana plants for personal (non-commercial) use in a private residence or accessory structure to a single private residence in the City of Santa Ana and must comply with the following requirements:

i. The marijuana cultivation area shall be located indoors within a private residence or accessory structure on a single parcel of property;

ii. No more than six (6) living marijuana plants is permitted for indoor personal cultivation;

iii. Marijuana in excess of twenty-eight and one-half (28.5) grams produced by plants kept for indoor personal cultivation must be kept in a locked space on the grounds of the private residence not visible from the public right-of-way.

iv. There shall be no exterior visibility or evidence of marijuana cultivation outside the private residence from the public right-of-way, including, but not limited to, any marijuana plants, equipment used in the growing and cultivation operation, or any light emanating from the cultivation; or

v. The cultivation may not violate any California Building, Electrical or Fire Codes or any other health and safety standards.

(2) Commercial Cultivation. Commercial cultivation of marijuana or cannabis is prohibited anywhere in the City except as allowed and regulated in Article I of this Chapter.

(3) Outdoor Cultivation. Outdoor commercial cultivation of marijuana or medical marijuana is prohibited anywhere in the City. No person, including a qualified patient or primary caregiver, shall engage, permit, or participate in the outdoor commercial cultivation of marijuana in the City.

(4) Public Nuisance Prohibited.

(i) It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any parcel within the City to create a public nuisance in the course of cultivating marijuana plants or any part thereof in any location, indoor or outdoor, except as allowed and regulated in Chapter 40 of the Santa Ana Municipal Code. A public nuisance may be deemed to exist, if such activity produces:

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

(2) Repeated responses to the parcel by law enforcement personnel;

(3) A repeated disruption to the free passage of persons or vehicles in the neighborhood, excessive noise which is disturbing to people of normal sensitivity on adjacent or nearby property or areas open to the public;

(4) Any other impacts on the neighborhood which are disruptive of normal activity in the area including, but not limited to, grow lighting visible outside the dwelling, excessive vehicular traffic or parking occurring at or near the dwelling, and excessive noise emanating from the dwelling.

(5) Outdoor and Commercial growing and cultivation of marijuana, except as allowed and regulated in Chapter 40 of the Santa Ana Municipal Code.

(f) A permitted medical marijuana dispensary may deliver medical marijuana only to a qualified patient or caregiver. Medical marijuana delivery services by dispensaries possessing regulatory safety permits must comply with Business and Professions Code §19340. Delivery of cannabis from a dispensary permitted pursuant to this Chapter can only be made in a city or county that does not expressly prohibit it by ordinance. Delivery services by dispensaries not in possession of regulatory safety permits is expressly prohibited.

(g) Non-Retail Commercial Cannabis Businesses for Medicinal and Adult-Use Cannabis as defined in Article I of Chapter 40 of the Santa Ana Municipal Code (SAMC) are permitted subject to the regulations and standards contained within Chapter 40 of the SAMC.

(Ord. No. NS-3026, § 7, 10-4-22, eff. 1-1-23)