CHAPTER 12.144
CULTIVATION AND MANUFACTURING OF MEDICAL MARIJUANA
SECTION:
12.144.030: Outdoor Cultivation Of Marijuana
12.144.040: Indoor Cultivation And Manufacturing Of Marijuana
12.144.050: Examination Of Books And Records
12.144.010 PURPOSE:
The purpose and intent of this chapter is to provide local regulation for the cultivation of medical marijuana and limited manufacturing of medical marijuana products in accordance with state law in order to promote the health, safety, morals, and general welfare of the residents and businesses within the city. (Ord. 2016-91, 1-19-2016; amd. Ord. 2016-94, 7-5-2016)
12.144.020 DEFINITIONS:
As used in this chapter, unless the context clearly indicates otherwise, the following words and phrases shall have the stated meanings:
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CULTIVATION OR MARIJUANA CULTIVATION: |
The growing of medical marijuana either indoors or within external greenhouses. |
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CULTIVATION AREA OR AREA: |
The actual area in use for the cultivation or manufacturing of marijuana, as determined by the city in its sole discretion. For the purposes of calculating the square footage of the cultivation area, trays of plants or seedlings stacked vertically will be counted individually such that, for example, two (2) trays of ten (10) square feet shall be counted as twenty (20) square feet of cultivation area. |
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FULLY ENCLOSED SECURE STRUCTURE: |
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 or more lockable doors and inaccessible to minors. |
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INDOORS: |
As used herein, means within a fully enclosed and secure structure. |
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MANUFACTURING OR MARIJUANA MANUFACTURING: |
The process by which the raw agricultural marijuana plant is transformed into a marijuana product, as defined herein, by extraction or other chemical process. |
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MARIJUANA PRODUCT: |
A concentrate or oil extracted from a marijuana plant and packaged in accordance with applicable state law. This list is exhaustive, and marijuana products do not include "edibles" or any other packaged or otherwise prepared or compounded form of marijuana. |
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MEDICAL MARIJUANA AND MEDICAL CANNABIS: |
These terms are defined in strict accordance with California Health and Safety Code sections 11362.5 and 11362.8 et seq. |
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MEDICAL MARIJUANA FACILITY OR MMCF: |
Any facility used for the cultivation, manufacturing, warehousing and storage of medical marijuana and marijuana products. |
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OUTDOORS: |
Any location within the city that is not within a fully enclosed and secure structure. |
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PRIMARY CAREGIVER: |
A "primary caregiver" as defined in section 11362.7(d) of the Health and Safety Code, as may be amended from time to time. |
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QUALIFIED PATIENT: |
A "qualified patient" as defined in section 11362.7(f) of the Health and Safety Code. |
(Ord. 2016-91, 1-19-2016; amd. Ord. 2016-94, 7-5-2016)
12.144.030 OUTDOOR CULTIVATION OF MARIJUANA:
All outdoor cultivation of marijuana within the city is prohibited. 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 any zoning district in the city to cause or allow such parcel to be used for the outdoor cultivation, manufacture or research of marijuana. (Ord. 2016-91, 1-19-2016; amd. Ord. 2016-94, 7-5-2016)
12.144.040 INDOOR CULTIVATION AND MANUFACTURING OF MARIJUANA:
It is hereby declared to be unlawful for any person owning, leasing, occupying, or having charge or possession of any property in the city to cause or allow such property to be used for the indoor cultivation or manufacturing of marijuana within a fully enclosed and secure structure on the property, except as provided in this chapter.
A. Indoor Cultivation and Manufacturing Standards. Indoor medical marijuana cultivation and manufacturing, within the city, shall be in conformance with the following standards:
1. Cultivation and manufacturing shall only be considered upon application and approval of a marijuana cultivation and manufacturing permit in accordance with the criteria and process set forth in this section.
2. Cultivation and manufacturing are conditionally permitted uses, requiring the issuance of a conditional use permit pursuant to chapter 12.28, only on property within the industrial zoning designation as illustrated in Boundary Diagram for Medical Cannabis Cultivation and Manufacturing (Chapter 12.144 Boundary) which is incorporated herein as Diagram 1. Possession of other types of state or city licenses does not exempt an applicant from the requirements of obtaining a permit under this chapter. No medical marijuana cultivation or manufacturing shall be established, developed or operated within one thousand (1,000) feet of a school, public playground or park, child care or day care facility, youth center or church. All distances shall be measured in a straight line, without regard to intervening structures, from the nearest point of the building or structure in which the cultivation or manufacturing is located, or will be located, to the nearest property line of those uses described in this subsection.
3. Cultivation and manufacturing are only allowed within fully enclosed and secure structures inaccessible to minors.
4. No cultivation area or manufacturing area shall exceed the square footage authorized pursuant to the relevant conditional use permit or the restrictions outlined in the state law.
5. There shall be no exterior evidence of indoor medical marijuana cultivation and manufacturing from the public right-of-way.
6. Cultivation and manufacturing shall not adversely affect the health or safety of the nearby residents by creating dust, glare, heat, noise, smoke, traffic, vibration, or other impacts, and shall not be hazardous due to the use or storage of materials, processes, products or wastes.
7. No more than eight (8) marijuana cultivation and manufacturing permits shall be issued and valid at any one time in the city.
8. A MMF shall comply fully with all of the applicable restrictions and mandates set forth in state law, including without limitation the Attorney General Guidelines. A MMF shall comply with all size requirements for such facilities imposed by state law. A MMF shall not engage in any activities not allowed at cultivation or manufacturing facilities pursuant to state law. A MMF shall comply with all horticultural, manufacturing, labeling, processing, and other standards required by state law.
9. Hours of operation for each MMF shall be established as a condition of approval of the conditional use permit.
10. All marijuana at a MMF shall be kept in a secured manner during business and nonbusiness hours.
11. All MMFs shall be organized in accordance with a business model established in compliance with all applicable laws of the state. Retail or wholesale sales of medical marijuana or medical marijuana products that violate California law or any other city of Gonzales ordinances are expressly prohibited. Each MMF shall obtain a State Board of Equalization seller’s permit for the purpose of selling tangible personal property for wholesale in the state of California.
12. In addition to the application fees associated with a MMF, the MMF shall pay an annual regulatory fee at the same time as applying for the business tax certificate or renewal thereof. In the event a MMF is established prior to the time the city adopts a MMF or medical marijuana business tax or any other revenue raising mechanism, the MMF shall be required to enter into a development agreement with the city whereby local tax payment equivalents are negotiated and established for payment until such time that a local tax or other revenue raising mechanism is adopted.
13. On-site smoking, ingestion, consumption of marijuana or alcohol shall be prohibited on the premises of a MMF. The term "premises" as used in this subsection includes the actual building, as well as any accessory structures and parking areas. The building entrance to a MMF shall be clearly and legibly posted with a notice indicating that smoking, ingesting, or consuming marijuana on the premises or in the vicinity of the facility is prohibited.
14. Signage for a MMF shall be limited to name and business only and in compliance with the city’s sign code, and no advertising of companies, brands, products, goods and/or services shall be permitted. Signage shall not include any drug-related symbols.
15. Alcoholic beverages shall not be sold, stored, distributed, or consumed on the premises of any MMF. A MMF shall not hold or maintain a license from the State Department of Alcohol Beverage Control to sell alcoholic beverages, or operate a business that sells alcoholic beverages. In addition, alcohol shall not be provided, stored, kept, located, sold, dispensed or used on the premises of a MMF.
16. Physician services shall not be provided on the premises.
17. The building in which a MMF is located, as well as the operations conducted therein, shall fully comply with all applicable rules, regulations, and laws, including, but not limited to, zoning and building codes, the city’s business license ordinance, the State Revenue and Taxation Code, the Americans with Disabilities Act, and the Compassionate Use Act. Compliance with all requirements of state law pertaining to cultivation and manufacturing of marijuana, as such state laws are amended, is also required.
18. A MMF shall not distribute, sell, dispense, or administer marijuana out of its facility to the public. A MMF shall not be operated as a medical marijuana dispensary.
19. The owner/operator of a MMF shall provide the city manager with the name, phone number, facsimile number, and email address of an on-site community relations or staff person or other representative to whom one can provide notice if there are operating problems associated with the MMF. The MMF shall make every good faith effort to encourage residents to call this person to try to solve operating problems, if any, before any calls or complaints are made to city police or planning department.
20. Any and all permits issued for the operation of a MMF shall expire and be null and void twelve (12) months from the effective date of the issuance of a marijuana cultivation and manufacturing permit unless otherwise extended by the city.
B. Marijuana Cultivation and Manufacturing Permit. Prior to initiating operations and as an ongoing requirement to conducting operations, the legal representative of the persons wishing to obtain a marijuana cultivation and manufacturing permit shall obtain said permit from the city manager or his/her designee under the terms and conditions set forth in this subsection. The legal representative shall file an application with the city manager upon a form provided by the city and shall pay a filing fee as established by resolution adopted by the city council as amended from time to time. An application for a marijuana cultivation and manufacturing permit shall include, but not be limited to, the following information:
1. An estimate of the size of the proposed facility.
2. The address of the location for which the marijuana cultivation and manufacturing permit is to be issued.
3. A site plan and floor plan of the premises denoting the use of all areas on the premises, including storage, cultivation areas, manufacturing areas, lighting, parking, signage, etc.
4. A security plan including the following measures:
a. Security cameras shall be installed and maintained in good condition, and used in an ongoing manner with at least one hundred twenty (120) concurrent hours of digitally recorded documentation in a format approved by the city manager. The cameras shall be in use twenty-four (24) hours per day, seven (7) days per week. The areas to be covered by the security cameras include, but are not limited to, the storage areas, cultivation areas, manufacturing areas, all doors and windows, and any other areas as determined by the city manager.
b. The MMF shall be provided with an alarm system that is operated and monitored by a licensed security company.
c. Entrance to any cultivation, manufacturing or storage areas within the MMF shall be locked at all times, and under the control of the MMF staff.
d. The entrances(s) and all window areas of the MMF shall be illuminated during evening hours. The applicant shall comply with the city’s lighting standards regarding fixture type, wattage, illumination levels, shielding, etc., and secure the necessary approvals and permits as needed.
e. All windows on the building that houses the MMF shall be appropriately secured and all marijuana and marijuana products securely stored.
5. The name and address of any person who is managing or responsible for the MMF activities, and the names and addresses of any employees, if any, and a statement as to whether such person or persons has or have been convicted of a crime(s), the nature of such offense(s), and the sentence(s) received for such conviction(s).
6. The name and address of the owner and lessor of the real property upon which the MMF is located. In the event the applicant is not the legal owner of the property, the application must be accompanied with a notarized acknowledgment from the owner of the property that a MMF will be operated on his/her property.
7. Authorization for the city manager to seek verification of the information contained within the application.
8. Evidence that the MMF is organized with a legal business structure compliant with all applicable laws of the state of California.
9. A statement in writing by the applicant that he/she certifies under penalty of perjury that all the information contained in the application is true and correct.
10. Any such additional and further information as is deemed necessary by the city manager to administer this section.
11. The city manager shall conduct a background check of any applicant for a marijuana cultivation and manufacturing permit, including any person who is managing or is otherwise responsible for the activities of the MMF, and any employee, and shall prepare a report on the acceptability of the applicant’s background and the suitability of the proposed location.
12. Once an applicant has completed the submission of information set forth in this section and the city manager has completed the attendant review process, the city manager shall submit the application to the city council for final certification and approval, unless the city manager finds that:
a. The applicant has made one or more false or misleading statements or omissions on the application or during the application process;
b. The proposed MMF is not allowed by state or local law, statute, ordinance, or regulation, including this code, at the location identified in the permit;
c. The applicant is not a primary caregiver or qualified patient or the legal representative of the MMF;
d. The applicant, or any person who is managing or is otherwise responsible for the activities of the MMF, or any employee, if any, has been convicted of a felony, or convicted of a misdemeanor involving moral turpitude, or the illegal use, possession, transportation, distribution or similar activities related to controlled substances, with the exception of marijuana related offenses for which the conviction occurred prior to the passage of the Compassionate Use Act. A conviction within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere;
e. The applicant, or a person who is managing or is otherwise responsible for the activities of the MMF has engaged in unlawful, fraudulent, unfair, or deceptive business acts or practices; or
f. The applicant has not satisfied each and every requirement of this section.
13. Based on the information set forth in the application and the city manager’s report, as well as all material provisions of any and all accompanying permits, including but not limited to a project conditional use permit, the city council may impose reasonable terms and conditions on the proposed operations in addition to those specified in this section. A marijuana cultivation and manufacturing permit issued pursuant to this section is not transferable.
14. In the event there are more than two (2) qualified applications, the city council shall rank all qualified applications in order of those that best satisfy the requirements of this section and provide the highest level of service and opportunities for the residents of the city based on the requirements of this section and the following criteria: (a) the operations plan for the facility; (b) the security plan for the facility; (c) the experience of the operators of the facility; (d) the adequacy of capitalization for the facility and operation; and (e) the employment and other public benefits to the city.
15. The obligations of the MMF, including ongoing and continuing obligations required pursuant to any provision of this section or as may be provided in any conditional approval of the city council, shall be set forth in a covenant running with the land or the leasehold interest, approved as to form by the city attorney, and enforceable by the city. Such covenant shall also provide that the MMF shall annually provide to the city manager an updated application containing the information required by this section. To the fullest extent permitted by law, the city shall not assume any liability whatsoever, and expressly does not waive sovereign immunity, with respect to medical marijuana, or for the activities of any MMF. Upon receiving possession of a marijuana cultivation and manufacturing permit, as provided in this section, the facility shall:
a. Execute an agreement indemnifying the city;
b. Carry insurance in the amounts and of the types that are acceptable to the city manager;
c. Name the city, its agents, officers and employees as additional insureds;
d. Agree to defend at its sole expense, any action against the city, its agents, officers and employees because of the issues of such approval; and
e. Agree to reimburse the city for any court costs and attorney’s fees that the city may be required to pay as a result of such action. The city may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve the operator of its obligation hereunder.
16. All MMFs shall be required to enter into a development agreement to fully reimburse the city for all costs of the city resulting from the existence of such facilities in the city and that provides the city with revenue to offset the potential deleterious effect of the location of MMFs within the jurisdiction of the city. (Ord. 2016-91, 1-19-2016; amd. Ord. 2016-94, 7-5-2016; Ord. 2017-103, 10-16-2017; Ord. 2018-108, 4-16-2018)
12.144.050 EXAMINATION OF BOOKS AND RECORDS.
A. The city manager or his/her designee shall be provided access to any and all MMF financial information at any time, as needed, to conduct an audit of the permittees under this chapter to verify compliance with tax and/or other city revenue generating mechanisms.
B. The city manager or his/her designee is authorized to examine the books, tax returns, records, and any other pertinent documents of any permittee for the purpose of verifying the accuracy of any declaration made, or if no declaration was made, to ascertain any business tax due and to ensure compliance with this chapter.
C. Every permittee is directed and required to furnish the city manager or his/her designee the means, facilities, and opportunity for making the aforesaid financial examinations and investigations at any reasonable time during regular business hours of the facility.
D. A permittee’s refusal to comply with the provisions of this section shall be deemed a violation of its conditional use permit. (Ord. 2016-91, 1-19-2016; amd. Ord. 2016-94, 7-5-2016)
12.144.060 ENFORCEMENT:
A. Operation of a MMF in noncompliance with any conditions of approval or standards of this section shall constitute a violation of the city code and shall be enforced pursuant to the provisions of this code.
B. The city manager, or his/her designee, shall have the right to enter the MMF from time to time unannounced for the purpose of making reasonable inspections to observe and enforce compliance with this section and all laws of the city and state of California;
C. Recordings made by the security cameras installed at each MMF shall be made available to the city manager or his/her designee upon verbal request and no search warrant or subpoena shall be needed to view the recorded materials.
D. The city manager may revoke a marijuana cultivation and manufacturing permit if any of the following, singularly or in combination, occur:
1. The city manager determines that the MMF has failed to comply with this section, any condition or approval, or any agreement or covenant as required pursuant to this section;
2. Operations cease for more than ninety (90) calendar days, including during change of ownership proceedings;
3. Ownership is changed without securing a regulatory permit;
4. The MMF fails to maintain one hundred twenty (120) hours of security recordings; or
5. The MMF fails to allow inspection of the security recordings, the activity logs or of the premises by authorized city officials.
E. Any decision regarding the revocation of a marijuana cultivation and manufacturing permit may be appealed to the city council. Said appeal shall be made by a notice of appeal from the person appealing within thirty (30) days from the date of the decision. The appeal shall be accompanied by a fee, which shall be established by resolution of the city council amended from time to time, and a written verified declaration setting forth the basis for the claim that the permit was improperly approved, denied, conditioned or revoked.
F. Any and all permits, rights or entitlements permitting the operation of a MMF shall expire and be null and void twelve (12) months from the effective date of issuance, unless otherwise extended by the city council. Unless extended, upon the conclusion of the twelve (12) month time period, the operation of a given MMF shall be a prohibited use and any rights obtained pursuant to this section or any other rules or agreements shall cease. (Ord. 2016-91, 1-19-2016; amd. Ord. 2016-94, 7-5-2016)