PORT HUENEME CITY COUNCIL SPECIAL MEETING MAY 22, :00 PM PORT HUENEME CITY HALL: 250 NORTH VENTURA ROAD PORT HUENEME, CA A G E N D A

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1 City of Port Hueneme PORT HUENEME CITY COUNCIL SPECIAL MEETING MAY 22, :00 PM PORT HUENEME CITY HALL: 250 NORTH VENTURA ROAD PORT HUENEME, CA A G E N D A Public Communications: Each member of the public may speak on any item appearing on the Agenda or that is within the subject matter jurisdiction of the City Council. Speakers will be allowed three minutes per Agenda item to address the Council. Members of the public who want to address the Council should fill out a speaker card located on the back table in the City Council Chamber and provide the speaker card to the City Clerk. If a speaker wishes to address an item on the Agenda please note the Agenda item number or topic on the speaker card to ensure that you are called to speak before the Council takes action on the Agenda item. All speakers wishing to address the Council on items not on the Agenda will be called on to speak during the Open Forum portion of the Agenda. 1. CALL TO ORDER, ROLL CALL 2. AGENDA: (Amend / Approve) 3. OPEN FORUM (10 Minutes) The Council will hear public comments for a maximum of 10 minutes. A person may address the Council only on matters within the Council s subject matter jurisdiction. The Council cannot enter into a detailed discussion or take any action on comments, but may refer them to the City Manager for follow up or scheduling on a subsequent agenda for discussion. Each speaker shall limit comments to three minutes. 4. CLOSED SESSION: With respect to every item of business to be discussed in Closed Session, pursuant to the California Government Code: A. CONFERENCE WITH LABOR NEGOTIATORS (Pursuant to Government Code Section ) Page 1 of 146

2 AGENCY DESIGNATED REPRESENTATIVES: Rod Butler, City Manager; Carmen Nichols, Deputy City Manager; Finance Director Alvin Burrell, Steven M. Berliner, Special Counsel. EMPLOYEE ORGANIZATIONS: Port Hueneme Police Officers Association (PHPOA). B. CONFERENCE WITH LABOR NEGOTIATORS (Pursuant to Government Code ) AGENCY DESIGNATED REPRESENTATIVES: Rod Butler, City Manager; Carmen Nichols, Deputy City Manager; Finance Director Alvin Burrell; Steven M. Berliner, Special Counsel. EMPLOYEE ORGANIZATIONS: SEIU 721 Southern California Public Service Workers C. CONFERENCE WITH LEGAL COUNSEL INITIATION OF LITIGATION (Pursuant to Government Code (d)) - Number of Cases: 1 5. PUBLIC HEARING: Mayor verifies posting of notice by City Clerk Councilmembers declare any conflict Councilmembers declare any ex parte contacts Mayor opens public hearing Staff presentation Public testimony Mayor closes public testimony City Council discussion and possible action A. CONSIDERATION OF MEDICAL MARIJUANA ORDINANCE Action: The City Council may consider taking the following actions: 1. After the City Attorney reads the title of the ordinance: a. Motion to introduce on first reading Ordinance No. (Attachment 1) Amending Article III and Repealing Part F of Chapter 2 of Article X of the Municipal Code to Implement the Compassionate Use Act of 1996 and Other State Laws by Allowing Medicinal Cannabis Facilities within the City Subject to Regulatory Parameters that Protect Public Health, Safety and Welfare; and b. Motion to be read by title only, and waive further reading (requires unanimous vote); and Page 2 of 146

3 2. Direct staff to schedule second reading and adoption of the ordinance for the June 5, 2017 regular City Council meeting; and 3. Direct staff to bring back the implementing resolution (Attachment 2) at the June 5, 2017 regular meeting for adoption immediately following second reading and adoption of the ordinance. 4. Take such additional, related, action that may be desirable. ORDINANCE TITLE FOR INTRODUCTION: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PORT HUENEME AMENDING ARTICLE III AND REPEALING PART F OF CHAPTER 2 OF ARTICLE X OF THE MUNICIPAL CODE TO IMPLEMENT THE COMPASSIONATE USE ACT OF 1996 AND OTHER STATE OF CALIFORNIA LAWS BY ALLOWING MEDICINAL CANNABIS FACILITIES WITHIN THE CITY SUBJECT TO REGULATORY PARAMETERS THAT PROTECT PUBLIC HEALTH, SAFETY AND WELFARE. 6. DEPUTY CITY MANAGER REPORTS/COMMENTS: A. ADOPTION OF RESOLUTION FOR EXCEPTION TO 180-DAY WAIT PERIOD PER GOVERNMENT CODE FOR ANNUITANT SERVING AS ELECTED OFFICIAL. Action: It is recommended the City Council adopt a Resolution for exception to the 180-day wait period per Government Code for services served as an Elected Official. RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORT HUENEME FOR EXCEPTION TO THE 180-DAY WAIT PERIOD (GOVERNMENT CODE SECTION ) 7. COUNCIL MEMBERS' REPORTS, COMMENTS, AND REQUESTS FOR FUTURE AGENDA ITEMS 8. CONTINUATION OF OPEN FORUM The Council will allow a continuation of public comments, if necessary, due to exceeding the total time allotted in the earlier Open Forum section. 9. CLOSED SESSION: (None) ADJOURNMENT: Adjourn to the Regular Meeting to be held June 5, 2017 at 6:30 p.m. in Page 3 of 146

4 the City Council Chamber. STATE OF CALIFORNIA ) )ss. COUNTY OF VENTURA ) I declare, under penalty of perjury, that I am employed by the City of Port Hueneme and that I caused this agenda to be posted in the City Hall notice case on May 18, 2017 Michele Kostenuik, City Clerk Copies of staff reports or other written documentation relating to each item of business referred to in this Agenda are available for public inspection in the Office of the City Clerk and on the City s website at Materials received after agenda packet distributions are made available to the public on the City s website and in the City Clerk s office at the same time they are provided to the Council. IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT, IF YOU NEED SPECIAL ASSISTANCE TO PARTICIPATE IN THIS MEETING, CONTACT THE OFFICE OF THE CITY CLERK AT OR THE CALIFORNIA RELAY SERVICE. NOTICE 48 HOURS PRIOR TO THE MEETING WILL ENABLE THE CITY TO MAKE REASONABLE ARRANGEMENTS TO ALLOW PARTICIPATION IN THIS MEETING. Page 4 of 146

5 City of Port Hueneme COUNCIL AGENDA STAFF REPORT TO: FROM: SUBJECT: City Council Rod Butler, City Manager CONSIDERATION OF MEDICAL MARIJUANA ORDINANCE DATE: May 22, 2017 COUNCIL ACTIONS: The City Council may consider taking the following actions: 1. After the City Attorney reads the title of the ordinance: a. Motion to introduce on first reading Ordinance No. (Attachment 1) Amending Article III and Repealing Part F of Chapter 2 of Article X of the Municipal Code to Implement the Compassionate Use Act of 1996 and Other State Laws by Allowing Medicinal Cannabis Facilities within the City Subject to Regulatory Parameters that Protect Public Health, Safety and Welfare; and b. Motion to be read by title only, and waive further reading (requires unanimous vote); and 2. Direct staff to schedule second reading and adoption of the ordinance for the June 5, 2017 regular City Council meeting; and 3. Direct staff to bring back the implementing resolution (Attachment 2) at the June 5, 2017 regular meeting for adoption immediately following second reading and adoption of the ordinance. 4. Take such additional, related, action that may be desirable. BACKGROUND/ANALYSIS State and federal law regulating cannabis The staff report from your workshop on April 25, 2017 (Attachment 3) and the prior staff reports including one dated March 22, 2017 reflect then City Attorney Karl Page 5 of 146 5A

6 Berger s summary of applicable state and federal cannabis laws, including federal law which provides criminal penalties for use, cultivation, possession and sale of cannabis for medicinal or non-medicinal purposes, as well as for aiding and abetting such activities. Legal scholars have opined that state laws which regulate, license and decriminalize cannabis under state law are not pre-empted by federal drug laws (see, e.g. Chemerinsky et. al, 62 U.C.L.A. Law Review 74 (2015)), but federal enforcement, including criminal prosecutions and asset forfeiture proceedings, could significantly disrupt or preclude implementation of state and local cannabis laws and ordinances. City Council considerations since January 2016 In response to changes in state law, the City Council adopted Part F of Chapter 2 of Article X of the P.H.M.C. in January 2016, adding a specific prohibition on medical marijuana within the City s jurisdiction. Subsequently, following further state law changes including voter approval of the Control, Regulate and Tax Adult Use of Marijuana Act, the Council in November 2016 formed a subcommittee to examine local cannabis regulation. The subcommittee reviewed a proposed ordinance in January 2017, and City Council has accepted public testimony and has addressed the issue of a cannabis ordinance and implementing resolution at several public meetings, most recently at meetings held March 22 nd, April 3 rd, April 17 th and April 25 th of this year. Minutes, prior correspondence and agenda reports from all of the prior proceedings are available for your review and should be considered part of the record and background for the current ordinance. At the conclusion of the Council workshop on April 25, 2017, Council passed a motion directing staff to finalize the ordinance and implementing resolution, subject to the following changes: 1. Incorporating the redlined changes and revisions provided to Council by the Mayor prior to the workshop Reconciling any conflicts, if any, with state law. 3. Strengthening the City s legal posture without modifying the Council intent. 4. Incorporating language that allows regulatory flexibility and applying criteria on a customized basis for each separate application. 5. Non-substantive, grammatical or typographical corrections as deemed necessary The Revised Ordinance 1 These are attached as Attachment 4 to this Staff Report. Page 6 of 146

7 Consistent with the direction given by Council on April 25 th, a revised ordinance is attached hereto as Attachment 1. As in the prior draft reviewed by Council on April 25 th, the ordinance: Repeals the blanket prohibition on cannabis activities. Allows only cannabis activities (e.g. cultivation, processing, dispensary, delivery) related to medicinal use. Requires applicants for a commercial cannabis activity related to medicinal use to apply for and obtain a Certificate of Approval from the City demonstrating operator qualifications and incorporating a security and operations plan to address health and safety concerns associated with the facility. Allows outdoor cultivation of up to six plants for personal medicinal use in the R-1 zone. Authorizes the City to charge reasonable application and processing fees to applicants. (Other local taxes, fees, benefit assessments, etc. would be considered and implemented at a later date by separate ordinance, resolution or agreement.) Provisions added to the ordinance subsequent to the 4/25 Council workshop include: Background check requirements for all employees. Additional manufacturing safety standards recommended by HdL consulting. Authorization for laboratory testing facilities to implement state law requirements for quality and dosage control. A term of one year on a Certificate of Approval; requires annual renewal. A redline showing changes made subsequent to the 4/25 workshop is attached (Attachment 5). The Revised Implementing Resolution The proposed implementing resolution sets forth additional detail and procedures concerning applications for a cannabis use. It is attached for informational purposes, but is not proposed for adoption until after second reading and enactment of the ordinance. Page 7 of 146

8 As in the prior draft reviewed by Council on April 25 th, the resolution: Declares and determines that commercial cannabis activity may be allowed as a conditional use within the C-1, M-1 and R-4 Zones. Provides procedures for the City to process applications for a Development Permit and a Certificate of Approval, both of which must be obtained for each facility engaged in a commercial cannabis activity. Declares and determines that outdoor cultivation of up to six cannabis plants for personal medicinal use may be permitted only in the R-1 Zone, and requires a Ministerial Permit. Provides procedures for the City to process applications for a Ministerial Permit for outdoor cultivation of cannabis for personal medicinal use. Provisions added to the resolution subsequent to the 4/25 Council workshop are shown on the redlined copy (Attachment 6). The changes add additional detail and clarification, but are consistent with the material terms of the version reviewed by Council on 4/25. California Environmental Quality Act ( CEQA ) An initial review of the proposed ordinance was been conducted pursuant to the California Environmental Quality Act (California Public Resources Code 21000, et seq., CEQA ) and CEQA regulations (14 California Code of Regulation 15000, et seq.). The proposed ordinance and resolution would delete the existing prohibition on cannabis uses in the Municipal Code and add provisions to regulate commercial cannabis activity that: (i) will not adversely affect adjoining property as to value or precedent and will not be detrimental to the area; (ii) does not authorize any new construction or use but rather describes a process that will require vetting of environmental, land use and operational issues in connection with each application for a Certificate of Approval and is therefore not a project under CEQA because it establishes general policy and procedure making (CEQA Guidelines Sec.15378(b)(2)), and constitutes organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment (CEQA Guidelines 15378(b)(5)); (iii) the implementing resolution is self-mitigating insofar as it provides the means for avoiding environmental impacts, if any are identified, as part of each discretionary application for a Certificate of Approval, and as provided in PHMC Section 10352C(7), each conditional use application is subject to separate environmental review under CEQA; and (iv) issuance of ministerial permits for personal, noncommercial cultivation is categorically exempt as a Class 1 or Class 5 project insofar as, at best, the activities that are authorized would constitute a minor alteration of existing public structures involving no expansion of use, or a minor Page 8 of 146

9 alteration in land use limitations (see 14 CCR Sections 15031, 15305). Based on the foregoing staff has determined that this ordinance is exempt from further environmental review. Publication of Notice Notice of the proposed ordinance (Attachment 7) was published on May 12, 2017 in the Tri-County Sentry in accordance with Cal. Government Code Section Local Coastal Program The proposed ordinance and implementing resolution do not amend the City s certified Local Coastal Program (LCP). The ordinance provides licensing and health and safety regulations for cannabis uses under Article III of the PHMC. Zoning and development standards of PHMC Article X are not changed except for repeal of the prohibition on cannabis uses under Chapter 2 of Part F, which Chapter is not part the LCP. Similarly, the proposed implementing resolution is declarative of existing zoning and does not alter the City s zoning map, development standards or the LCP. Accordingly, no LCP amendment or other Coastal Commission approval is required for the ordinance and resolution. Next Steps Based upon the foregoing, Council may take the actions set forth above on page 1 of this report. FISCAL IMPACT: Application fees will be imposed to offset staff and consultant costs for processing applications and approvals for cannabis activities. Additional fees, taxes and other fiscal benefit arrangements will be considered at a later date to offset additional staff and policing costs associated with ongoing cannabis operations, which costs are unknown at this time. ATTACHMENTS: 1.) Ordinance proposed for first reading 2.) Implementing resolution 3.) Agenda report from 4/25/17 Council workshop 4.) Mark-ups provided to Council by Mayor before the 4/25/17 workshop 5.) Ordinance redlined against version reviewed by Council on 4/25/17 6.) Resolution redlined against version reviewed by Council on 4/25/17 7.) Published notice Page 9 of 146

10 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PORT HUENEME AMENDING ARTICLE III AND REPEALING PART F OF CHAPTER 2 OF ARTICLE X OF THE MUNICIPAL CODE TO IMPLEMENT THE COMPASSIONATE USE ACT OF 1996 AND OTHER STATE OF CALIFORNIA LAWS BY ALLOWING MEDICINAL CANNABIS FACILITIES WITHIN THE CITY SUBJECT TO REGULATORY PARAMETERS THAT PROTECT PUBLIC HEALTH, SAFETY AND WELFARE. The City Council of the City of Port Hueneme does ordain as follows: SECTION 1: The City Council finds and determines as follows: A. On November 5, 1996, the voters of the State of California approved Proposition 215, codified as Health and Safety Code Section , et seq., entitled the Compassionate Use Act of 1996 ( CUA ). The CUA exempts qualified patients and their primary caregivers from criminal liability under state law for the possession and cultivation of marijuana for personal medical use. B. The intent of the CUA is to enable persons in the State of California who are in need of marijuana for medicinal purposes to obtain it and use it under limited, specified circumstances. C. Health and Safety Code Section , et seq., ( Medical Marijuana Program Act, or MMPA ) clarifies the scope of CUA and allows cities and other governing bodies to adopt and enforce rules and regulations consistent with the MMPA. The MMPA created a state-approved voluntary medical marijuana identification card program and provided for certain additional immunities from state marijuana laws. D. The Federal Controlled Substances Act, 21 U.S.C. 801, et seq., classifies marijuana as a Schedule 1 Drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and that has not been accepted as safe for use under medical supervision. The Federal Controlled Substances Act makes it unlawful under federal law for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, marijuana. The Federal Controlled Substances Act contains no exemption for medical purposes. E. In 2015, the Medical Marijuana Regulation and Safety Act ( MMRSA ) became effective. MMRSA establishes a State of California licensing Page 10 of 146

11 scheme for commercial medical marijuana uses while protecting local control by requiring that all such businesses must have a local license or permit to operate in addition to a State license. MMRSA allows a city to completely prohibit commercial medical marijuana activities. F. The limited immunity from specified state marijuana laws provided by the CUA and MMPA does not confer a land use right or the right to create or maintain a public nuisance. G. In City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, the California Supreme Court held that [n]othing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land.... Additionally, in Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, the Court of Appeal held that there is no right and certainly no constitutional right to cultivate medical marijuana.... The Court in Maral affirmed the ability of a local governmental entity to prohibit the cultivation of marijuana under its land use authority. H. A statewide initiative entitled the Control, Regulate and Tax Adult Use of Marijuana Act ( AUMA ) was approved by voters on the November 2016 ballot. AUMA decriminalizes (under California law), controls and regulates the cultivation, processing, manufacture, distribution, testing and sale of nonmedical marijuana, including marijuana products, for use by adults 21 years of age or older. AUMA also taxes the commercial growth and retail sale of marijuana. It does not, and cannot, affect federal regulations as to marijuana or its derivatives. I. AUMA expressly preserves local control over the regulation of marijuanarelated businesses and marijuana-related land uses (Business & Professions Code 26200, et seq.) SECTION 2: Authority. This Ordinance is adopted pursuant to the authority granted by the California Constitution and State law, including, without limitation, Article XI, Section 7 of the California Constitution; the CUA, MMPA, MMRSA and AUMA. The city manager is authorized to administer this Ordinance and to promulgate such administrative policies and procedures that may be required to implement this Ordinance. SECTION 3: Findings. The City Council finds as follows: A. This Ordinance will not adversely affect adjoining property as to value or precedent, and will not be detrimental to the area. Since 1996, twenty states and the District of Columbia have legalized the use, home cultivation, and, in some cases, the retail dispensing of medical marijuana. In a study published March 26, 2014 in the journal PLOS One, researchers analyzed FBI crime statistics from eleven of these states between 1990 and (Morris RG, TenEyck M, Barnes JC, Kovandzic TV (2014) The Effect of Page 11 of 146

12 Medical Marijuana Laws on Crime: Evidence from State Panel Data, PLoS ONE 9(3): e doi: /journal.pone ) The states included Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Vermont and Washington. The research revealed that laws authorizing the use and dispensing of medical marijuana are not predictive of higher crimes rates and, in fact, may be related to reductions in rates of homicide and assault. Robbery and burglary rates were found to be unaffected by medical marijuana legislation, despite widely-held belief to the contrary. The results of the study were consistent with other prior research suggesting that medical marijuana dispensaries may actually reduce crime in the immediate vicinity. Indeed, a U.S. National Institutes of Health study found that the psychopharmacologic effect of marijuana has been attributed to mellowing out or causing individuals to nod out, conditions that are likely to ameliorate violent tendencies. (U.S. Department of Health and Human Services, Public Health Service & National Institute on Drug Abuse, Drugs and Violence: Causes, Correlates and Consequences, NIDA Research Monograph 103, at 187 (1990)). The same study noted that marijuana use had no correlation to violent crime. (Id. at 8, 25, Table 6 and 232). Although there may be secondary impacts associated with marijuana dispensaries in the City, such as the possibility of increased crime at the facility, an increase in people loitering about the facility, and odors, the Council finds this ordinance adequately attempts to ameliorate such secondary impacts. Accordingly, there is substantial evidence to support the conclusion that this ordinance will not be detrimental to any area of the City or have an adverse effect on property values. To the contrary, it is anticipated that the limited authorization of marijuana-related businesses and uses contemplated by the ordinance, together with the strict regulatory controls set forth therein, will have the effect of reducing crime in the City and promoting public health, safety and the general welfare. B. This Ordinance promotes public health, safety and general welfare. Based on the studies and sources cited in the preceding paragraph, there is substantial evidence to support the conclusion that the limited authorization of marijuana-related businesses and uses contemplated by the ordinance, together with the strict regulatory controls set forth therein, will have the effect of reducing crime in the city and would, therefore, promote public health, safety and the general welfare. C. This Ordinance will not adversely affect the City s General Plan or zoning regulations set forth in the Port Hueneme Municipal Code ( PHMC ) because this Ordinance (i) regulates commercial cannabis activity without regard to zone district or development standards that are properly relegated to Article X of the PHMC; and (ii) preserves the City s land use authority to Page 12 of 146

13 determine the appropriate zone district and permit process by which such uses may be allowed. SECTION 4: Article III, Chapter 12 of the PHMC is amended to read as follows: 3980 Purpose. Chapter 12 MEDICINAL CANNABIS ACTIVITY This Chapter is adopted pursuant to the city s police powers and municipal affairs provision of the City Charter for the purpose of permitting commercial cannabis activity for medical purposes in compliance with state and local laws. Nothing in this Chapter is intended to, nor does it, duplicate or conflict with applicable local, state, or, beyond the extent constitutionally permissible, federal laws General Prohibitions. A. It is unlawful for any person to engage in commercial cannabis activity without a valid Certificate of Approval issued pursuant to this Chapter for each location at which the activity is proposed to occur. B. Unless otherwise provided by this Chapter, it is unlawful for any person to engage in commercial cannabis activity from other than a fixed location within the city s jurisdiction for which a Certificate of Approval has been obtained and remains in effect. C. It is unlawful for any person to cause, permit, aid, abet, or conceal a violation of any provision of this Chapter. D. Except as expressly authorized pursuant to this Chapter, commercial cannabis activity is prohibited in the City of Port Hueneme Permitted Medicinal Cannabis Activity. Subject to applicable State law and this Chapter, commercial cannabis activity is permitted when approved by the City in accordance with this Chapter and only if related to medical purposes. Commercial cannabis activity related to recreational use is unlawful. Specifically, the following commercial cannabis activity may be allowed pursuant to a Certificate of Approval as it relates to medical purposes: A. Sale; B. Indoor cultivation; Page 13 of 146

14 C. Delivery; D. Manufacturing; and E. Testing Services Definitions. Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this Chapter. Words and phrases undefined in this Chapter have the same meaning as set forth in the Adult Use of Marijuana Act; the Compassionate Use Act; the Medical Marijuana Program Act; or the Medical Marijuana Regulation and Safety Act. Cannabis means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. Cannabis also means the separated resin, whether crude or purified, obtained from marijuana. Cannabis also means marijuana as defined by Health and Safety Code Section Cannabis does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this Chapter, cannabis does not mean industrial hemp as defined by Food and Agricultural Code Section of the or Health and Safety Code Section For purposes of this code, marijuana has the same meaning as cannabis and the two terms are used interchangeably. Certificate of Approval or Certificate means final approval granted for commencement of a commercial cannabis activity under this Chapter. Commercial cannabis activity includes cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product, except as set forth in Business and Professions Code Section 19319, related to qualifying patients and primary caregivers. Cultivation means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis. Delivery means the commercial transfer of medical cannabis or medical cannabis products from a facility, up to an amount determined by the bureau, to a primary Page 14 of 146

15 caregiver or qualified patient as defined in Health and Safety Code Section , or a testing laboratory. Delivery also includes the use by a facility of any technology platform owned and controlled by the facility, or independently licensed under California law, which enables qualified patients or primary caregivers to arrange for or facilitate the commercial transfer by a licensed facility of medical cannabis or medical cannabis products. Director means the city manager, or designee. Employee at a facility means any person who performs work at the facility, including but not limited to any owner, supervisor, worker, volunteer or independent contractor, whether paid or unpaid, full time or part-time. Employ means to hire or otherwise retain or allow a person to act as an employee. Incidental contractors and enforcement officials (as defined in this Chapter) shall not be considered employees. Enforcement official means an employee of or contractor for the City, County, or State who is enters onto the premises of a facility for the purpose of implementing this Chapter or enforcing applicable laws. Facility means a facility at which commercial cannabis activity occurs as authorized by this Chapter including, without limitation, a medical marijuana collective, a medical marijuana dispensary, a commercial cannabis cultivation facility, a Testing Service, or a manufacturing site for cannabis products. Identification card means a document issued either by a governmental agency, e.g., the California Department of Health Services, or other valid documentation that identifies a person as someone authorized to engage in the medical use of marijuana, and that identifies the person s designated primary caregiver, if any. Implementing Resolution means a resolution adopted by the City Council which prescribes the application process, eligibility requirements and/or operational parameters governing commercial cannabis activity and/or cultivation of cannabis for personal medicinal use. Incidental contractors means independent contractors who are brought in to a facility only occasionally and solely to perform specialized services generally applicable to non-cannabis businesses (e.g. pest control specialist, plumber, electrician, copier repair tech). Medical marijuana collective means a collective, cooperative, association, dispensary or similar entity that cultivates, distributes, dispenses, stores, exchanges, processes, delivers, makes available or gives away cannabis in the city for medical purposes to qualified patients, or primary caregivers of qualified patients pursuant to Health and Safety Code or any State regulations promulgated to implement the Compassionate Use Act of Medical Marijuana Page 15 of 146

16 Collective does not include the following uses, so long as such uses comply with this Code and other applicable law: A. A clinic licensed pursuant to Health and Safety Code 1200, et seq. B. A health care facility licensed pursuant to Health and Safety Code 1250, et seq. C. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Health and Safety Code , et seq. D. A residential care facility for the elderly licensed pursuant to Health and Safety Code 1569, et seq. E. A hospice or a home health agency licensed pursuant to Health and Safety Code 1725, et seq. Medical cannabis, medical cannabis product, or cannabis product has the same meaning as set forth in Business & Professions Code (ag), as the same may be amended from time to time. Operations Plan means an operating plan approved by the police chief, that implements the standard requirements of this Chapter along with such additional, reasonable, criteria needed to protect public health and safety as determined by the police chief, based upon the size and location of the proposed facility. Person with an identification card means an individual who is a qualified patient who has applied for and received a valid identification card. Personal cultivation, cultivation for personal use and similar terms mean cultivation of cannabis for medicinal consumption solely by (i) the cultivator, if the cultivator is a qualified patient; and/or (ii) by the cultivator s qualified patient, if the cultivator is the primary caregiver of the qualified patient. Police Chief means the police chief, or designee. Primary caregiver means the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person, and may include any of the following: A. In any case in which a qualified patient or person with an identification card receives medical care or supportive services, or both, from a clinic licensed pursuant to Health and Safety Code Section 1200, et seq., a health care facility licensed pursuant to Health and Safety Code Section 1250, et seq., a residential care facility for persons with chronic life-threatening illness Page 16 of 146

17 licensed pursuant to Health and Safety Code Section , et seq., a residential care facility for the elderly licensed pursuant to Health and Safety Code Section 1569, et seq., a hospice, or a home health agency licensed pursuant to Health and Safety Code Section 1725, et seq., the owner or operator, or no more than three employees who are designated by the owner or operator, of the clinic, facility, hospice, or home health agency, if designated as a primary caregiver by that qualified patient or person with an identification card. B. An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver. C. An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card. D. A primary caregiver must be at least 21 years old, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Family Code Sections 6922, 7002, 7050, or Qualified patient means a person who is entitled to the protections of Health and Safety Code Section School means any public or private school providing instruction in kindergarten any grades 1 through 12. A school does not include any private school in which education is primarily conducted in private homes. Testing Service or Testing Services has the same meaning as testing service set forth in Health and Safety Code State License Required; Timing. To engage in commercial cannabis activity allowed by this Chapter, a person must obtain all of the following: A. First, a Certificate of Approval as required by this Chapter. B. After obtaining a Certificate of Approval issued by this Chapter, a person must thereafter obtain and maintain all State of California commercial cannabis activity licenses required for the facility, e.g. a Type 6 Page 17 of 146

18 (Manufacturer 1) license issued by the California Department of Consumer Affairs and/or a Type 10 or 10A (Dispensary) license issued by the California Department of Consumer Affairs, etc. as enumerated in Cal. Bus. & Prof. Code section or other applicable state law. C. Background check approval from the City for each employee at the facility, pursuant to Section 3985 of this Chapter. D. After obtaining a Certificate of Approval, a person must thereafter, before commencing a commercial cannabis activity, obtain a Development Permit and any other permits and approvals required for the facility under Article X or other provision of this Code. Notwithstanding any other provision of applicable law, unless extended or renewed, a Certificate of Approval will be rendered void should a person fail to obtain, within six (6) months following issuance of the Certificate of Approval, or thereafter maintain, the state license and other permits and approvals required by this Section Certificate of Approval Qualifications; Background Check for Applicants and Employees. A. To protect public health and safety, and to further ensure that commercial cannabis activity permitted by this Chapter is in the public interest, the City may establish by Implementing Resolution and/or by administrative policies and procedures promulgated by the City Manager the procedures for determining the qualifications of persons allowed to apply for a Certificate of Approval or allowed to be employed at a facility. Any such resolution, policy or procedures may also establish the application fees and method, including timing, for objectively evaluating and reaching a decision on applications for a Certificate of Approval pursuant to this Chapter. B. Pursuant to California Penal Code Sections 11105(b)(11) and 13300(b)(11), which authorize city authorities to access state and local summary criminal history information for employment, licensing, or certification purposes, and authorize access to federal level criminal history information by transmitting fingerprint images and related information to the Department of Justice to be transmitted to the Federal Bureau of Investigation, every applicant for a Certificate of Approval (including owners and other representatives of the applicant) and every person to be employed at the facility must submit fingerprints and other information deemed necessary by the Chief of Police or his/her designee(s) for a background check by the Port Hueneme Police Department. A fee for the cost of the background investigation, which shall be the actual cost to the City of Port Hueneme to conduct the background investigation as it deems Page 18 of 146

19 necessary and appropriate, including City staff time and costs, shall be paid at the time the person submits for the background check. C. In addition to any other qualifications, methods and procedures established for applicants pursuant to Paragraph A above in this Section, an applicant for a Certificate of Approval or for employment at a commercial cannabis activity shall be denied a Certificate of Approval and disqualified from employment at a facility if the background check or other information shows that the applicant: 1. Is dishonest or untrustworthy; 2. Has committed a felony or misdemeanor involving fraud, deceit or embezzlement; 3. Was convicted of a violent felony or crime of moral turpitude; or 4. Was convicted of unlawful activity under the Federal Controlled Substances Act, except for California medical cannabis-related offenses for which the conviction occurred after the passage of the Compassionate Use Act of Term of Certificate. Unless otherwise provided in the Certificate, a Certificate of Approval shall expire one year following its issuance. All commercial cannabis activity at the facility shall cease upon expiration of the Certificate unless and until the Certificate is renewed or a new Certificate of Approval is issued pursuant to the Implementing Resolution Limitations on City s Liability. A. To the fullest extent permitted by law, the city does not assume any liability whatsoever, with respect to approving any Certificate of Approval pursuant to this code or the operation of any facility approved pursuant to this code. B. As a prerequisite to issuance of a Certificate of Approval, the applicant must: 1. Execute an agreement indemnifying the city from any claims, judgments, awards, damages, injuries, or liabilities of any kind arising out of or related to issuance of a Certificate of Approval and/or approval of a Development Permit or Ministerial Permit, or operation of the facility or the prosecution of the facility or its owners, managers, directors, officers, employees, or its qualified patients or primary caregivers for violation of federal or state laws; Page 19 of 146

20 3987 Location Criteria. 2. Maintain insurance in the amounts and of the types that are acceptable to the city manager or designee; 3. Name the city as an additionally insured on all city required insurance policies; 4. Agree to pay the fees and costs of legal counsel selected by the city to defend the city, its agents, officers, and/or employees against any claim described in subsection 3986(B)1 above; and 5. Agree to reimburse the city for any court costs and attorney fees the city may be required to pay as a result of any claim described in subsection 3986(B)1 above. 6. The agreements required by this subsection 3986(B) must be secured with sufficient insurance, as determined by the City Attorney, and a surety, as approved by the City Attorney, to adequately protect the city from any and all liability. The surety requirement may be waived in the discretion of the director if the applicant demonstrates sufficient net worth to adequately cover the liability exposure. FACILITIES A. Facilities may only be allowed within the zone districts designated by Implementing Resolution. Each physical location of a facility requires a separate Certificate of Approval. B. It is unlawful for any portion of the parcel on which a facility is located to be within 600 feet of any parcel that contains a school. C. If a facility is located above the ground floor, it must be accessible to persons with disabilities in conformance with applicable law including, without limitation, the California Building Code as adopted by this code. D. A Certificate of Approval may be renewed for a facility located on a parcel that is within 600 feet of a school if: (1) the school located to the area after the Certificate of Approval was first issued; (2) the Certificate of Approval has not lapsed for any period of time; and (3) the facility was in continuous operation. For purposes of this section, a temporary interruption of business activity due to fire, natural disaster or other force majeure is excused provided reasonable steps are taken by the Certificate holder to resume business operations expeditiously. The prior, temporary suspension of a Certificate of Approval does not render a Certificate of Page 20 of 146

21 Approval ineligible for renewal under this section provided the applicant otherwise qualifies for renewal Community Relations. A. Each facility must provide the city manager or designee with the name, telephone number, and address of an on-site community relations or staff person or other representative to whom the city can provide notice if there are operating problems associated with the facility or refer members of the public who may have any concerns or complaints regarding the operation of the facility. Each facility must also provide the above information to all businesses and residences located within 100 feet of the facility. B. During the first year of operation of a facility authorized under this Chapter, the owner, manager, and community relations representative from each such facility must attend a monthly meeting with the city manager and/or designee to discuss costs, benefits and other community issues arising as a result of implementation of the Certificate of Approval authorized by this Chapter. After the first year of operation, the owner, manager, and community relations representative from each such facility must meet with the city manager and/or designee when and as requested by the city manager or designee Operations Plan and Standards. A Certificate of Approval issued for a facility must include, as conditions of approval, the operating standards set forth below. In addition, the Certificate of Approval must incorporate by reference an Operations Plan approved by the police chief, that implements not only the operating standards set forth in this Section, but such additional conditions that the police chief finds reasonably necessary to implement the purpose of this Chapter when considering the location, size and other characteristics of the proposed facility. DISPENSARIES Operational Standards for Dispensaries. In addition to all other requirements of an Operations Plan required by this Chapter, dispensary facilities must include the following in an Operations Plan approved by the police chief: A. Except as otherwise provided, a facility can only be open for access to the public between the hours of 9:00 a.m. and 9:00 p.m. B. It is unlawful for alcohol or tobacco to be sold within the facility. Further, it is unlawful for smoking, vaporization, ingestion or consumption of alcohol, tobacco or marijuana in any form, to occur on the premises of a facility, Page 21 of 146

22 elsewhere on the same parcel, or in outdoor areas adjacent to the parcel (e.g., parking lots, walkways, sidewalks, streets, parks, etc.). C. It is unlawful for cannabis or cannabis products or graphics depicting cannabis or cannabis products to be publicly visible from the exterior of the property. It is unlawful to store cannabis or cannabis products outside of the facility at any time. D. All cannabis and cannabis products allowed to be sold or otherwise made available at a facility must be cultivated, manufactured, and transported by licensed facilities that maintain operations in full conformance with State and local regulations including, without limitation, certification by a testing service as required by applicable law. E. It is unlawful for a physician to be located in, or on the same parcel as, a facility at any time for the purpose of evaluating patients to issue a medical marijuana prescription or card. F. Before dispensing cannabis or cannabis products to any person, the facility must verify that the person possesses a valid identification card. G. Each facility must provide the police chief, with the name and telephone number of an on-site employee or owner to whom emergency notice can be provided. The telephone number provided must be capable of accepting recorded voice messages in the event the contact person does not answer. H. Except for employees of the facility, enforcement officials and incidental contractors, it is unlawful for any person to be allowed into any area of a facility where medical cannabis products are displayed and/or being offered for sale unless that person is a qualified patient and has a valid identification card (as defined in Section 3983), or is named as a designated primary caregiver on a valid identification card. It is unlawful for any person under the age of 21 to be present in any area of a facility where medical cannabis products are displayed and/or being offered for sale unless that person satisfies one of the foregoing criteria and is accompanied by a parent or legal guardian. A sign must be posted at each entrance to a sales/display area of the facility informing patrons of these restrictions. I. It is unlawful for any person under age 21 to be present in any lobby or reception area of a facility unless that person is a qualified patient or primary caregiver and is accompanied by a parent or legal guardian. J. It is unlawful for any person to employ any other person at a facility unless: (i) the person is at least 21 years of age; and (ii) the person has passed any Page 22 of 146

23 background check and employee registration process specified by Implementing Resolution. K. Each entrance to a facility must be posted with a conspicuous notice stating that smoking, vaping, ingesting, or otherwise consuming cannabis on the premises or in the areas adjacent to the facility is prohibited. L. Dispensaries can only dispense medical cannabis or cannabis products to a person with an identification card, as defined in Section M. Entrances into any area of a facility where medical cannabis products are displayed and/or being offered for sale must be locked at all times with entry strictly controlled. A buzz-in electronic/mechanical entry system must be utilized to limit access to such areas and to separate them from the outside and/or any adjacent reception/lobby area. The specifics of such entry system must be set forth in the operations plan. N. Uniformed security personnel must be employed to monitor all entrances and exits of the facility and to serve as a visual deterrent to unlawful activities during all hours of operation. Every security guard employed by or provided by the facility must be currently licensed by the California Bureau of Security & Investigative Services and in possession of a valid guard card. The number of such security personnel must be set forth in the operations plan. O. All restroom facilities serving a facility must remain locked and under the control of management. P. Odor control devices and techniques must be incorporated in a facility to ensure that odors from marijuana are not detectable outside of the facility or in any tenant space or area adjacent to the facility. Q. It is unlawful for any person within a facility to provide cannabis or cannabis products to any individual in a quantity not consistent with personal use. R. A facility cannot store more than $ in cash reserves overnight on the premises except as may be otherwise provided in the operations plan incorporated as a condition of approval in the Certificate of Approval. S. All law enforcement and code enforcement personnel seeking admission to the facility for the purpose of ascertaining compliance with the standards and regulations of this code must be given unrestricted access to all areas of the premises at all times during hours of operation. Consent to such unrestricted access must be acknowledged by the Certificate of Approval holder and included within the operations plan. Page 23 of 146

24 T. All interior spaces of the facility which are open and accessible to the public (except restrooms), and all entrances and exits to and from the premises, must be monitored by 24-hour video security surveillance of at least HD quality with night vision capability. The video security system must be compatible with software and hardware utilized by the city as determined by the Police Chief and set forth in the operations plan. Surveillance video must be recorded to a device that is securely located on the premises and all footage must be maintained for a minimum of 45 days. The video surveillance system specifications must be set forth in the operations plan before the city issues a certificate of occupancy for the facility. U. A facility must have a professionally installed, maintained, and monitored alarm system as approved through the operations plan. V. A facility must maintain a valid business license as required by this code. W. All food products, food storage facilities, food-related utensils, equipment and materials must be approved, used, managed and handled in accordance with the provisions of the California Retail Food Code (Health & Safety Code et seq.). All food products must be protected from contamination at all times, and all food handlers must be clean, in good health, and free from communicable diseases. The Ventura County Department of Environmental Health may inspect the facility at any time during business hours to ensure compliance with this Section. X. Except as otherwise provided by state law, state or city regulation or condition of approval, baked cannabis products (e.g., brownies, bars, cookies, cakes), tinctures, and other non-refrigerated items may be sold at a facility. Y. A Certificate of Approval for a facility is subject to all of the regulations and operational standards set forth in this section in addition to the conditions stated in the Certificate of Approval itself. CULTIVATION 3990 Outdoor Cultivation Prohibited; Exception. Except for personal medicinal use as provided in Sections 3992 and 3993 below, outdoor cultivation of cannabis is prohibited in all areas of the city Operational Standards for Cultivation. In addition to all other requirements of an Operations Plan required by this Chapter, facilities engaged in indoor cultivation must include the following in an Operations Plan approved by the police chief: A. The facility can have only one contiguous cultivation area. Page 24 of 146

25 B. It is unlawful to use flammable or explosive substances in the cultivation of cannabis. C. Facilities engaged in cultivation must follow all pesticide use requirements of local, state and federal law. D. The Operations Plan must include a detailed electrical and plumbing plan, along with projections for water usage. E. All law enforcement personnel seeking admission to the cultivation site for the purpose of ascertaining compliance with the standards and regulations of this code must be given unrestricted access to all areas of the premises at all times during hours of operation. Consent to such unrestricted access must be acknowledged by the applicant and included within the Operations Plan. F. It is unlawful for any person under the age of 21 to be present within the area where the cultivation of cannabis is occurring. A sign must be posted at each entrance to a cultivation facility informing visitors of these restrictions. G. All cultivation activity must be conducted in compliance with all applicable state and local water conservation laws, ordinances, and regulations. H. Each cannabis cultivation facility must provide the police chief with the name and telephone number of an on-site employee or owner to whom emergency notice can be provided. The telephone number provided must be capable of accepting recorded voice messages in the event the contact person does not answer. I. Entrances into any area of a cannabis cultivation facility where cannabis is grown or kept must be locked at all times with entry strictly controlled. The specifics of such entry system must be set forth in the Operations Plan. J. Odor control devices and techniques must be incorporated in a cannabis cultivation facility to ensure that odors from cannabis are not detectable outside of the facility or in any tenant space or area adjacent to the facility. K. A cannabis cultivation facility must have a professionally installed, maintained, and monitored alarm system as approved through the Operations Plan. L. Cannabis cultivation facilities cannot be open to the public, though the facility may dispense cannabis in accordance with a Certificate of Approval. Page 25 of 146

26 M. A cannabis cultivation facility must be equipped with an automated fire suppression system to the satisfaction of the Building Official. N. Except as expressly approved as part of the Operations Plan and incorporated in a Certificate of Approval, it is unlawful for any cannabis cultivation facility to use, employ, or maintain any equipment, system, material or apparatus for the purpose of increasing the ambient carbon dioxide levels within any grow area. O. It is unlawful to cultivate cannabis within 600 feet of any other parcel containing a school. P. It is unlawful for cannabis or cannabis products or graphics depicting cannabis or cannabis products to be publicly visible from the exterior of the property. It is unlawful to store cannabis or cannabis products outside of the facility at any time. Q. All interior spaces of the facility which are open and accessible to the public (except restrooms), and all entrances and exits to and from the premises, must be monitored by 24-hour video security surveillance of at least HD quality with night vision capability. The video security system must be compatible with software and hardware utilized by the city as determined by the Police Chief and set forth in the operations plan. Surveillance video must be recorded to a device that is securely located on the premises and all footage must be maintained for a minimum of 45 days. The video surveillance system specifications must be set forth in the operations plan before the city issues a certificate of occupancy for the facility. R. A facility must maintain a valid business license as required by this code. S. A Certificate of Approval for a facility is subject to all of the regulations and operational standards set forth in this section in addition to the conditions stated in the Certificate of Approval itself Personal Cultivation; Standards and Regulations. Outdoor cultivation of cannabis for personal use in accordance with State law may only be permitted as regulated under the provisions of Section 3993 of this Chapter Personal Cultivation for Medicinal Use; Development and Operational Standards. A. Not more than six cannabis plants of any size may be cultivated on any parcel regardless of the number of qualified patients or caregivers residing on the property. Page 26 of 146

27 B. Cultivation cannot exceed 75 square feet in cumulative area. C. All outdoor cannabis cultivation must be fully enclosed by an opaque, wooden fence six feet in height. The fence must be at least ten feet from any structure on the property and be adequately secure to prevent unauthorized entry and theft. The police chief will determine the level of security necessary. D. It is unlawful to cultivate cannabis within 600 feet of any other parcel containing a school. E. No lighting, heaters, fans, generators or other mechanical equipment that may cause a nuisance to neighbors may be used in connection with the cultivation of cannabis. F. It is unlawful to cultivate cannabis in the front yard area of any parcel. G. It is unlawful to cultivate cannabis within the required rear or side yard setbacks of any parcel. H. It is unlawful for there to be any audible or olfactory evidence of cannabis cultivation from any street, sidewalk, public right-of-way, or adjacent property, or any visual evidence of cannabis cultivation when viewed from five feet above ground level from any street, sidewalk, public right-of-way, or adjacent property. I. The cultivation of medicinal cannabis is permitted for non-commercial purposes only. It is unlawful to sell, trade, barter, or engage in any other commercial exchange of cannabis or cannabis products cultivated pursuant to this section. J. The address of any dwelling on a parcel where cannabis is cultivated must be posted and plainly visible from the public right-of-way. K. Cultivation of cannabis cannot occur on any property where a parolee or probationer resides unless the parolee or probationer has received confirmation from a court of competent jurisdiction that he or she is allowed to use medical cannabis while on parole or probation pursuant to Health and Safety Code section Such confirmation must be provided to city staff or law enforcement upon request. L. Any law enforcement personnel may, after providing 24 hours notice, enter onto the property where cultivation of medical cannabis is occurring pursuant to this section for the purpose of inspecting the cultivation site and perimeter fencing. This section does not purport to authorize any law enforcement personnel to enter any dwelling located on the property. For Page 27 of 146

28 purposes of this section, notice is sufficient if posted at the entrance to the dwelling on the property or if hand delivered to any person over the age of 18 residing on the property. M. It is unlawful for any person under the age of 21 to be present within the fenced area where the cultivation of medical cannabis is occurring unless such person is a qualified patient or a primary caregiver and he or she is in the presence of his or her parent or guardian. N. All cultivation activities must be conducted in compliance with all applicable state and local water conservation laws, ordinances, and regulations. O. Nothing in this section is intended to authorize the cultivation, possession, or use of cannabis in violation of state or federal law. P. Notwithstanding any other provision of this code, or applicable law, no variances are permitted from any of the regulations in this section. Q. Prior to commencing cultivation under this Section, the cultivator shall obtain a Ministerial Permit from the City as provided by Implementing Resolution. A valid Ministerial Permit must be maintained in effect by the cultivator throughout the period of cultivation. The cultivator shall remove all cannabis plants and plant materials from the property within 24 hours following termination or expiration of the Ministerial Permit Delivery. DELIVERY A. A Certificate of Approval for a facility may authorize the delivery of medical cannabis as part of and in conjunction with the operation of the facility. Deliveries by dispensaries other than those which are located in the City of Port Hueneme and hold a valid Certificate of Approval under this Chapter are unlawful. B. Delivery of cannabis from a facility that has obtained a Certificate of Approval pursuant to this Chapter can only be made in a city or county that does not expressly prohibit such deliveries by ordinance. C. It is unlawful for any person under the age of 21 to be allowed to serve as a delivery driver and no person can employ a person under the age of 21 for the purpose of making deliveries of any medical cannabis product. D. A facility which has obtained a Certificate of Approval pursuant to this Chapter may have its delivery privileges suspended or terminated by the city manager if the facility is found to have violated this Chapter. Page 28 of 146

29 MANUFACTURING AND TESTING FACILITIES 3995 Operations Plan; Additional Requirements. In addition to any other requirements of an Operations Plan, a Testing Service or a facility engaged in manufacturing cannabis products must include, as conditions precedent to issuance of a Certificate of Approval, an Operations Plan encompassing the elements set forth in Section Operational Standards. A. The manufacture of cannabis products and the operations of a Testing Service must be undertaken in a manner that ensures the health, safety, and welfare of the public, the employees of the cannabis business, visitors, and neighboring properties. B. All law enforcement and code enforcement personnel seeking admission to the manufacturing or testing site for the purpose of ascertaining compliance with the standards and regulations of this code must be given unrestricted access to all areas of the premises at all times during hours of operation. Consent to such unrestricted access must be acknowledged by the applicant and included within the Operations Plan. C. It is unlawful for any person under the age of 21 to be present within the area where the manufacture or testing of cannabis products is occurring. A sign must be posted at each entrance to a manufacturing or testing facility informing visitors of these restrictions. D. All manufacturing and testing activity must be conducted in compliance with all applicable state and local water conservation laws, ordinances, and regulations. E. It is unlawful for any person to employ another person under the age of 21 at a cannabis manufacturing or testing facility. F. Entrances into any area of a cannabis manufacturing or testing facility where cannabis products are made, tested or kept must be locked at all times with entry strictly controlled. The specifics of such entry system must be set forth in the Operations Plan. G. Odor control devices and techniques must be incorporated in a cannabis manufacturing or testing facility to ensure that odors from cannabis are not detectable outside of the facility or in any tenant space or area adjacent to the facility. Page 29 of 146

30 H. A cannabis manufacturing or testing facility must have a professionally installed, maintained, and monitored alarm system as approved through the Operations Plan. I. It is unlawful for cannabis manufacturing or testing facilities to be open to the public. J. Any compressed gases used in the manufacturing or testing process shall not be stored in containers that exceed 150 pound tanks in size. Each facility shall be limited to a total of eight tanks on the property at any time. K. Cannabis manufacturing and testing facilities are limited to the following methods, equipment, solvents, gases and mediums when creating cannabis extracts: 1. Cannabis manufacturing and testing facilities may use the hydrocarbons N-butane, isobutane, propane, or heptane or other solvents or gases exhibiting low to minimal potential human-related toxicity approved by the director. These solvents must be of at least ninety-nine percent purity and any extraction process must use them in a professional grade closed loop extraction system designed to recover the solvents, work in an environment with proper ventilation, controlling all sources of ignition where a flammable atmosphere is or may be present. 2. Any extraction processes must use a professional grade closed loop CO₂ gas extraction system where every vessel is rated to a minimum of six hundred pounds per square inch. The CO₂ must be of at least ninety-nine percent purity. 3. Closed loop systems for hydrocarbon or CO₂ extraction systems must be commercially manufactured and bear a permanently affixed and visible serial number. 4. Certification from a licensed engineer must be provided to the Community Development Department for professional grade closed loop systems used by any cannabis manufacturing or mechanized testing system to certify that the system was commercially manufactured, safe for its intended use, and built to codes of recognized and generally accepted good engineering practices, such as: (i) the American Society of Mechanical Engineers (ASME); (ii) the American National Standards Institute (ANSI); (iii) Underwriters Page 30 of 146

31 Laboratories (UL); or (iv) the American Society for Testing and Materials (ASTM). 5. The certification document must contain the signature and stamp of a professional engineer and serial number of the extraction unit being certified. 6. Professional closed loop systems, other equipment used, the extraction operation, and facilities must be approved for their use by the Fire Department and meet any required fire, safety, and building code requirements specified in the California Building Reference Codes. L. Cannabis manufacturing facilities may use heat, screens, presses, steam distillation, ice water, and other methods without employing solvents or gases to create keef, hashish, bubble hash, or infused dairy butter, or oils or fats derived from natural sources, and other extracts. M. Cannabis manufacturing facilities may use food grade glycerin, ethanol, and propylene glycol solvents to create extracts. All ethanol must be removed from the extract in a manner to recapture the solvent and ensure that it is not vented into the atmosphere. N. Cannabis manufacturing facilities creating marijuana extracts must develop standard operating procedures, good manufacturing practices, and a training plan prior to producing extracts for the marketplace. Any person using solvents or gases in a closed looped system to create marijuana extracts or otherwise in a testing or manufacturing facility must be fully trained on how to use the system, have direct access to applicable material safety data sheets and handle and store the solvents and gases safely. O. Parts per million for one gram of finished extract produced in a manufacturing facility cannot exceed 500 parts per million of residual solvent or gas when quality assurance tested. P. It is unlawful for cannabis or cannabis products or graphics depicting cannabis or cannabis products to be publicly visible from the exterior of the property. It is unlawful to store cannabis or cannabis products outside of the facility at any time. Q. Each facility must provide the police chief, with the name and telephone number of an on-site employee or owner to whom emergency notice can be provided. The telephone number provided must be capable of accepting recorded voice messages in the event the contact person does not answer. R. All interior spaces of the facility which are open and accessible to the public (except restrooms), and all entrances and exits to and from the premises, Page 31 of 146

32 must be monitored by 24-hour video security surveillance of at least HD quality with night vision capability. The video security system must be compatible with software and hardware utilized by the city as determined by the Police Chief and set forth in the operations plan. Surveillance video must be recorded to a device that is securely located on the premises and all footage must be maintained for a minimum of 45 days. The video surveillance system specifications must be set forth in the operations plan before the city issues a certificate of occupancy for the facility. S. A facility must maintain a valid business license as required by this code. T. A Certificate of Approval for a facility is subject to all of the regulations and operational standards set forth in this section in addition to the conditions stated in the Certificate of Approval itself. ENFORCEMENT 3997 Enforcement of Certificates of Approval; Generally. In addition to other remedies set forth in this code, violations of this Chapter may be prosecuted as infractions or misdemeanors at the City Attorney s discretion and may be abated as public nuisances. The remedies provided by Sections 3997 through are cumulative and in addition to any other criminal or civil remedies. For purposes of Sections 3997 through , violations of this Chapter include (i) violation of the provisions of this Chapter; (ii) violation of any Implementing Resolution; (iii) violation of any administrative policy or procedure promulgated by the director; (iv) violation of the terms and conditions of a Certificate of Approval, development agreement, indemnification agreement, operations plan, development permit, or other permit or agreement associated with a facility; and (v) violation of terms and conditions of a Ministerial Permit issued for cannabis cultivation for personal use City Attorney Enforcement Authority. In addition to any other general functions, powers, and duties given to the City Attorney by this code or California law, the City Attorney is authorized to: A. Prosecute on behalf of the people all criminal and civil cases for violations of this Chapter including, without limitation, administrative or judicial nuisance abatement and suits for injunctive relief; B. Prosecute all actions for the recovery of fines, penalties, forfeitures, and other money accruing to the city under this Chapter Administrative Suspension and Revocation. A. Suspension or Revocation. In addition to any other penalty authorized by law, the director may suspend or revoke a Certificate of Approval for the Page 32 of 146

33 following reasons: 1. Upon learning that an applicant provided false, misleading or materially incomplete information in connection with its application for a Certificate of Approval or discovering facts that require denial of an application for a Certificate of Approval under this Chapter that were not previously disclosed by the applicant; or 2. Upon occurrence of a violation under this Chapter. B. Notice of Suspension or Revocation. If the director elects to suspend or revoke a Certificate of Approval, the director shall provide written notice of suspension or revocation to the holder of the Certificate at the address of the facility. The notice shall state the basis for the suspension or revocation and provide information regarding the right to appeal. Unless the director determines there is an imminent threat to public health, safety and welfare and makes the suspension or revocation effective immediately, suspension or revocation of the Certificate of Approval shall not become effective until the time for filing an appeal has passed or, if an appeal is timely filed, until the city manager has rendered a final decision on the appeal Appeal of Notice of Suspension or Revocation. A. A notice of suspension or revocation of a Certificate of Approval may be appealed to the city manager, provided that a request for review (appeal) is filed with the office of the city manager within ten calendar days from the date on which the written notice of suspension of revocation was mailed to the holder of the Certificate. If a request for review is untimely, the city manager may, but is not required to, extend the time for commencing such review for good cause shown. B. A request for review must be on a form provided by the community development department and contain the following information: 1. The name, address and telephone number of the person making the request; 2. A description of the decision, determination or order which is the subject of the review and the date such decision, determination or order was made or issued; 3. A complete description of all grounds for making the request, together with any evidence in support of the request; and 4. Such other information as may be required by the director. Page 33 of 146

34 C. Upon receiving a request for review, the city manager will review the request and, within ten business days of receiving the request, provide the appellant with a written notification that: 1. The director s decision is affirmed; 2. The director s decision is modified; or 3. The director s decision is reversed. D. The city manager may, but is not required to, conduct a hearing at a time, place and manner determined in the city manager s sole discretion. Should a hearing occur, the city manager may issue a decision orally at the conclusion of the hearing, but also notify the appellant and director in writing of the city manager s decision. The decision may include such terms and conditions as the city manager may determine to be in the interest of public health and safety, including revocation, suspension, or continuation of a Certificate of Approval (with or without modification to conditions of approval). E. The city manager s decision is final. There is no right of appeal to the City Council Right to Judicial Review. A final decision of the city manager may be judicially reviewed pursuant to Code of Civil Procedure Section No New Certificate After Revocation. Should a medical cannabis cultivation Certificate of Approval be revoked, the former holder of the Certificate is presumptively disqualified to apply for a new Certificate of Approval in accordance with this Chapter. This presumption may be overcome upon a showing of good cause as to why a Certificate of Approval should be issued following a revocation. Any such showing must be made to the director s satisfaction Attorney s Fees in Nuisance Abatement Action. If the court issues an order or a judgment which finds a public nuisance to exist, and orders or approves the abatement of the public nuisance, the city is entitled to recover its actual costs of abatement, including, without limitation, reasonable attorneys fees incurred by the city in such judicial proceeding Remedies Cumulative. The remedies provided by this Chapter are cumulative and in addition to any other criminal or civil remedies including, without limitation, those set forth elsewhere in this code. SECTION 5: Article X, Chapter 2, Part F of the Port Hueneme Municipal Code is hereby repealed and shall have no further force or effect. Page 34 of 146

35 SECTION 6: Environmental Review. This Ordinance is exempt from additional review under the California Environmental Quality Act (California Public Resources Code 21000, et seq., CEQA ) and CEQA regulations (14 California Code of Regulations 15000, et seq.) a. On the basis of evidence provided, and for the reasons set forth in Section 3, Paragraphs A and B, the Ordinance will not adversely affect adjoining property as to value or precedent, and will not be detrimental to the area. b. The Ordinance does not authorize any new construction or use; rather, it merely prescribes a process that requires the vetting of environmental, land use and operational issues in connection with each application for a Certificate of Approval. As such, the Ordinance is not a project under CEQA because: (1) it establishes "general policy and procedure making" (CEQA Guidelines 15378(b)(2); and (2) it constitutes "organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment (CEQA Guidelines 15378(b)(5)). c. The Implementing Resolution is self-mitigating insofar as it provides the means for avoiding environmental impacts, if any are identified, as part of each discretionary application for a Certificate of Approval. As stipulated in PHMC Section 10352C(7), each conditional use application is subject to separate environmental review under CEQA. Furthermore, as stipulated in PHMC Sections and 10542, conditional uses within the C-1, M-1 and R-4 zones may only be allowed so long as they will not be injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated. d. Issuance of ministerial permits for personal, non-commercial cultivation is categorically exempt as a Class 1 or Class 5 project in so far, at best, the activities that are authorized would constitute a minor alteration of existing public structures involving no expansion of use, or a minor alteration in land use limitations (see 14 CCR 15301, 15305). SECTION 7: Construction. This Ordinance must be broadly construed in order to achieve the purposes stated in this Ordinance. It is the City Council s intent that the provisions of this Ordinance be interpreted or implemented by the city and others in a manner that facilitates the purposes set forth in this Ordinance. SECTION 8: Enforceability. Repeal of any provision of the Port Hueneme Municipal Code does not affect any penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties for any violation occurring before this Ordinance s effective date. Any such repealed part will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Ordinance. SECTION 9: Severability. If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity Page 35 of 146

36 will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable. SECTION 10: as follows: The City Clerk and Director of Community Development are directed a. The City Clerk shall certify the passage and adoption of this Ordinance, cause it to be entered into the city of Port Hueneme s book of original ordinances, make a note of the passage and adoption in the records of this meeting, and, within fifteen days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. b. The Director of Community Development shall file a Notice of Exemption upon adoption of this Ordinance under the provisions of CEQA Guidelines Sections (d) and 15062, thereby commencing a 35-day challenge period should any interested party take exception to the City's determination set forth in Section 6 hereof. SECTION 11: This Ordinance will take effect on the 31 st day following its final passage and adoption. PASSED AND ADOPTED this day of, ATTEST: Michelle Kostenuik, City Clerk Tom Figg, Mayor APPROVED AS TO FORM Charles R. Green, City Attorney PHNE/0001-1/DOC/003-2.DOC 5/17/ law Page 36 of 146

37 Draft 5/17/17 CITY OF PORT HUENEME RESOLUTION NO. A RESOLUTION ESTABLISHING APPLICATION REQUIREMENTS, MINIMUM QUALIFICATIONS AND LOCATIONAL CRITERIA FOR MEDICINAL CANNABIS ACTIVITY PURSUANT TO ARTICLES III AND X OF THE PORT HUENEME MUNICIPAL CODE THE CITY COUNCIL RESOLVES AS FOLLOWS: SECTION 1: The City Council finds and declares that: A. On [TBD], the City Council adopted Ordinance No. [TBD] (hereinafter, the Ordinance ) that amends Article III, Chapter 12 of the Port Hueneme Municipal Code ( PHMC ), entitled "Medicinal Cannabis Activity"; B. The Ordinance establishes the general requirements for obtaining approval for operating a commercial cannabis activity within the City of Port Hueneme and allowing cultivation for personal medicinal use; C. The Ordinance provides that the City Council may, by resolution, establish fees and application and qualifications requirements for persons seeking a Certificate of Approval for a Medicinal Cannabis Activity; D. PHMC Section C. allows for interpretive judgments as to the appropriate zones within which unspecified uses may be permitted based upon comparable uses and specified purposes of corresponding districts; E. Commercial Cannabis Activity (as such term is defined in the Ordinance) is not expressly listed among the uses permitted within any of the zone districts of the City; and F. This Resolution is adopted pursuant to the Ordinance and PHMC Section C for the purpose of establishing fees and minimum qualification requirements, application procedures and locational criteria for persons seeking approval of a Commercial Cannabis Activity. SECTION 2: Under the provisions of PHMC Section C., the City Council finds and declares that: A. Commercial. Page 37 of 146

38 1. Commercial cannabis activity (as defined in the Ordinance) includes cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product; 2. The sale of medicinal cannabis is an activity most closely aligned with the purpose of the C-1 Zone which is for general business and commercial uses (PHMC Section 10480) including, but not limited to, Drug Store which is allowed under PHMC Section A.14 as a permitted use; 3. Cultivation of medicinal cannabis is an activity most closely aligned with Nursery which is also a permitted use within the C-1 Zone (PHMC Section A.30) and defined as an area where plants are grown for transplanting, for use as stocks for budding and grafting, or for sale (Merriam-Webster Dictionary); 4. Uses of structures which are incidental or accessory to any of the uses permitted in the C-1 Zone are also allowed including possession, manufacture, processing, storing, laboratory testing, labeling, transporting and distribution which comprise the balance of commercial cannabis activity (PHMC Section A.43); 5. No use within the C-1 Zone, whether expressly permitted or as an incidental activity to the principal use, is allowable if such use or associated operations are objectionable due to noise, odor, dust, smoke, vibration, or other similar causes (PHMC Section 10484); 6. In consideration of the facts, findings and regulatory provisions of the Ordinance, the potential impact of commercial cannabis activity could result in objectionable outcomes unless special measures are imposed as conditions of approval to ensure land use compatibility; and 7. As such, and by operation of PHMC Section I., the sale of medicinal cannabis and associated incidental uses (i.e., cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution) are most appropriately classed as conditional uses within the C-1 Zone. B. Manufacturing. 1. Facility (as defined in the Ordinance) means a commercial cannabis activity that occurs at a specific geographic location including, without limitation: cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, Page 38 of 146

39 distribution, or sale of medical cannabis or a medical cannabis product; 2. Cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, and distribution (without retail sales) are activities most closely aligned with the purpose of the M-1 Zone which is for industrial uses other than those requiring direct water adjacency together with selected commercial/industrial uses (PHMC Section 10540); 3. The production of medicinal cannabis (encompassing those activities described in Paragraph 2 above) is most closely aligned with laboratory, research and manufacturing uses not otherwise specified as permitted uses within the M-1 Zone (PHMC Section F); 4. Laboratory, research and manufacturing uses not otherwise specified as permitted uses within the M-1 Zone are allowable as conditional uses so long as such uses are not injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated (PHMC Section 10542); and 5. As such, and by operation of PHMC Section F., the production of medicinal cannabis (encompassing those activities described in Paragraph 2 above) are most appropriately classed as conditional uses within the M-1 Zone. C. Miscellaneous. 1. As a comparable conditional use within the C-1 (General Commercial) Zone, commercial cannabis activity is likewise allowed within the R-4 (Mixed Use Residential) Zone by conditional use under the provisions of PHMC Section A; and 2. Personal cultivation of cannabis for medicinal purposes (as a permitted use) is: (i) most closely associated with detached single family properties with outdoor space suitable for growing and harvesting; and (ii) is comparable to private greenhouses, gardens and trees specified in PHMC Section B. D. Declarations. Based on the foregoing, it is hereby determined as follows: 1. Commercial cannabis activity may be allowed as a conditional use within the R-4, C-1 and M-1 Zones. Such use shall be subject to, and contingent upon, issuance of a Development Permit by operation of Page 39 of 146

40 PHMC Section A.2. Commercial cannabis activity shall not be permitted or conditionally permitted in any other zone. 2. Personal cultivation of cannabis for medicinal purposes may be allowed as a permitted use only within the R-1 (Single Family) Zone, and in no other zone. Such use shall be subject to, and contingent upon, issuance of a Ministerial Permit by operation of PHMC Section Except or unless the terminology used herein conflicts with the PHMC or requires a different meaning within the context of commercial cannabis activity, the terms and definitions contained in the Ordinance shall govern. Otherwise, the provisions of PHMC Section C. shall be utilized to reconcile any such conflicts. SECTION 3: This Section of the Resolution is adopted pursuant to, and by the authority of, the Ordinance. In addition to the general application requirements set forth in PHMC Sections (Development Permits) or (Ministerial Permits), applications, for a Certificate of Approval under Chapter 12, Article III of the PHMC for a commercial cannabis activity, and applications for a Ministerial Permit for cultivation of cannabis for personal use, must include the following: A. Application Filing. Each application must: (i) be filed on forms prescribed by the City; and (ii) include the following basic information and certifications: 1. Every application must be signed by the commercial proprietor and/or residential occupant (as the case may be), under penalty of perjury, along with the property owner of record; 2. The name, mailing address, and contact information for the person filing the application, along with the name, address and contact information for the business/individual for which the Certificate or Permit is sought; and 3. Evidence of site control by means of ownership, lease or letter of intent from the property owner (with name, address, contact information, and signature of the property owner on the application). B. Commercial Cannabis Activity. Each application entailing a commercial cannabis activity, as such term is defined in the Ordinance, shall be accompanied with the following information and documents: 1. Physical Plan. A graphic depiction of the proposed business location including site plan, floor plan and proposed improvements of sufficient detail to clearly communicate the realm, character and physical attributes of the proposed operations. The physical plan shall also Page 40 of 146

41 include a map, of measurable scale, to depict the proposed business location relative to: (i) the distance to schools within 1,000 feet of the site; and (ii) the type of land uses within 1,000 feet of the site. 2. Qualifications Statement. A detailed resume of each person having an ownership interest in the proposed business including all training, certifications, education, licenses and all relevant credentials demonstrating a working knowledge of federal, state and local laws, regulations and guidelines governing medicinal cannabis. The resume shall also list all relevant business experience including the location and duration of other comparable facilities operated by the owner. 3. Business Operations. A business operating plan consisting of: (i) a narrative outlining the scope of physical improvements and timing of occupancy; (ii) hours of operation, signage and advertising; (iii) number and classification of all employees; (iv) number and location of off-street parking spaces required to accommodate employees, customers and deliveries; (v) availability of off-street parking and impact on shared arrangements; and (vi) staging, frequency and scheduling of deliveries to and from the site. 4. Safety Precautions. A detailed description of fire prevention, suppression, HVAC and alarm systems that includes an assessment of fire safety by a qualified f ire prevention/suppression consultant. The analysis and associated recommendations shall consider all possible fire hazards, storage/handling of hazardous materials, and inhalation issues/threats. The assessment shall provide an evaluation of all potential risks along with recommendations to affirmatively further public health, safety and welfare. 5. Security Plan. A narrative and detailed security plan, prepared by a professionally licensed security consultant with extensive experience in the medicinal cannabis industry, including, without limitation, operating procedures, facility design schematics, and technological security features, measures for securing ingress and egress to the premises, protecting the building perimeter (including patrolling for vagrancy and loitering), safeguarding products and cash maintained onsite, use of cameras and video equipment to monitor activities and number/credentials of security personnel to be employed. The Security Plan must be approved by the Chief of Police, and he or she may require modifications in the interests of public health, safety and welfare. 6. Applicant Credentials. A criminal history background report for each person having an ownership interest in the proposed business that demonstrates, to the reasonable satisfaction of the Chief of Police, that such individuals do not pose a threat to public health, safety or welfare by virtue of their involvement in the proposed business. Each person who is employed in the proposed business shall also submit to a Page 41 of 146

42 criminal background investigation for review and approval by the Chief of Police as a condition of employment. 7. Regulatory Compliance. A detailed explanation as to: (i) how medical cannabis will be tracked and monitored to prevent diversion in compliance with applicable federal, state and local laws; (ii) how transactions will be recorded, monitored and audited to assure that all purchases and sales are fully documented; (iii) how cash will be managed and secured; and (iv) measures to assure that the City will receive the required amount of taxes and license fees that apply to the proposed business. 8. Product Handling. A detailed description of all products to be produced, processed, packaged and sold as part of the proposed business. The description shall indicate how products will be packaged and displayed for sale, disclosures as to strength and content, quality control measures including laboratory testing, consultation with customers as to products best suited for their particular medical circumstance, and safeguards as the type and amount of product that can be sold to a specific customer. 9. Neighborhood Compatibility. A narrative describing how the proposed business will be managed and operated so as to avoid becoming a nuisance or having impact on its neighbors and the surrounding community including, but not limited to: (i) compliance with the performance standards set forth in PHMC Section 10227; (ii) prevention of vagrancy, loitering and disruptive behavior; and (iii) enforcement of the terms and conditions of Permit approval. 10. Community Benefits. A detailed description of benefits that the proposed business would provide to the local community such as employment of local residents, voluntary contributions to civic organizations, sponsorship of community events, revenue enhancement for the City, "green" business practices relating to energy usage, water conservation and waste management, serving a need not presently provided, and similar such opportunities. 11. Financial Consideration. A contractual pledge of revenue to: (i) offset the cost of application processing and permit renewal; (ii) reimburse the City for recurring costs of monitoring, auditing and enforcement; (iii) augment general revenues of the City through business license fees specific to commercial cannabis activities that are not currently recognized under the PHMC; and (iv) indemnify the City and pay all costs resulting from any and all legal challenges associated with approval or issuance of a Development Permit, Development Agreement, and/or Certificate of Approval. Applications shall include the true and accurate financial statement of the applicant, and, at the option of the City, all those having an ownership interest in Page 42 of 146

43 the proposed or existing business. 12. Business Acumen. A detailed description of overall financial wherewithal and business acumen to establish, conduct and sustain the proposed operations including: (i) working capital to underwrite property improvements and recurring costs; (ii) experience in the successful development, marketing, and maintenance of comparable businesses; and (iii) a five-year financial proforma evidencing financial viability. 13. Development Agreement. A proposed Development Agreement, substantially in the form provided by the City, that incorporates, at a minimum: (i) the Financial Considerations specified in Section 3, Paragraph B.11 of this Resolution; (ii) interconnection of the Zoning Clearance and Development Agreement with provisions for mutual termination and/or survivability of covenants in the event of violation, invalidation or revocation of either entitlement; and (iii) indemnification of the City and all officials thereof from actions by third parties including, but not limited to, enforcement of conflicting State and Federal laws. C. Private Cultivation. Each application for a Ministerial Permit for outdoor private cultivation for personal medicinal purposes shall be accompanied with the following information and documents: 1. Physical Plan. A graphic depiction of where the cultivation activities are proposed including site plan and proposed improvements of sufficient detail to clearly communicate the realm, character and physical attributes of the proposed operations. The physical plan shall also include a map, of measurable scale, to depict the proposed location relative to: (i) the distance to schools within the 1,000 feet of the site; and (ii) the type of land uses within 1,000 feet of the site. 2. Qualifications Statement. A qualifications statement consisting of: (i) a title report (or equivalent) evidencing that the applicant is the legal owner of record and current occupant, where occupancy is authorized by the owner of record of the property for which private cultivation is proposed; (ii) criminal history background report for the applicant that demonstrates, to the reasonable satisfaction of the Chief of Police, that the applicant does not pose a threat to public health, safety or welfare by virtue of the proposed cultivation; and (iii) documentation that validates the applicant s legal entitlement to grow and consume cannabis for medicinal purposes. D. Confidentiality. At the discretion of the City Manager and Chief of Police, and with consent of the City Attorney, application material may be withheld from public review in the event that such disclosure could: (i) compromise public safety by virtue of divulging information concerning security measures, surveillance procedures or business operations of a highly Page 43 of 146

44 sensitive nature; (ii) entail proprietary information which could advantage competitors to the financial or business determent of the applicant; or (iii) publicly identify persons and locations engaged in cultivation for personal use, which could be used to target them for burglary or theft. SECTION 4: Review of Applications. This Section of the Resolution is adopted pursuant to, and by the authority of, the Ordinance. In addition to all other requirements of applicable law including, without limitation, PHMC Article X, applicants for a Certificate of Approval to operate a commercial cannabis activity will be subject to the following: A. Application Screening. An application for a Ministerial Permit for personal use cultivation or a Development Permit for a commercial cannabis activity shall be evaluated for completeness in accordance with the provisions of PHMC Section and 10354, as applicable; provided, however, that (as provided in the Ordinance) approval of a Certificate of Approval is a prerequisite for a Development Permit for a commercial cannabis activity, and consequently the Development Permit application shall not be deemed complete until the applicant has obtained a Certificate of Approval for the facility. An application shall only be accepted upon a favorable determination that such application contains all of the materials specified in PHMC Sections and along with the information and documents specified in Section 3 of this Resolution. B. Evaluation of Applications. Upon a determination the application is complete, an application for a Development Permit or a Ministerial Permit shall be evaluated within the time and manner specified in PHMC Section and 10354, as applicable. A Certificate of Approval, Development Permit, or Ministerial Permit for a commercial cannabis activity or personal cultivation for medicinal use shall only be issued upon a favorable ruling by the decision maker that the application, considering the whole of the record and proposed conditions of approval, meet all applicable requirements of the PHMC, the Ordinance, this Resolution, any AP&P promulgated pursuant to Section 6 below, and the following standards: 1. Certificate of Approval or Development Permit. For a Certificate of Approval or Development Permit, that the applicant, owners and operators: (i) possess the required licenses, certifications and authorities to conduct the proposed commercial cannabis activity; (ii) are of good character, honesty, and integrity, whose background, reputation and associations do not present a substantial risk that the activity will result in adverse consequences; (iii) have a successful track record in operating comparable cannabis related businesses; (iv) evidence sufficient financial capacity and operational wherewithal; and (v) demonstrate that the use or uses proposed will not be injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated. Page 44 of 146

45 2. Ministerial Permit. For a Ministerial Permit, that the applicant: (i) possesses the required licenses, certifications and authorities to cultivate cannabis for personal medicinal use; and (ii) is of good character, honesty, and integrity, and is a person whose background, reputation and associations do not present a substantial risk that the proposed cultivation will result in adverse consequences. C. Decision Maker. 1. Ministerial Permit. The decision on an application for a Ministerial Permit for personal use cultivation shall be made by the Director of Community Development or his designee and shall be final as provided in PHMC Section C. 2. Development Permit. The decision on an application for a Development Permit for a commercial cannabis activity shall be made by the City Council and shall be final as provided in PHMC Section F. 3. Certificate of Approval. The decision on an application for a Certificate of Approval for a commercial cannabis activity shall be made by the City Manager or his designee, with a right of appeal to City Council as provided in this paragraph. Upon reaching a final decision on such an application, the City Manager or designee shall provide written notice thereof to the applicant and to any person who has previously requested in writing notice of the decision. Any person aggrieved by the decision may, within ten calendar days following the date of the notice of decision, deliver to the City Manager in writing a written appeal describing the appellant s objections to the decision. Upon receipt by the City Manager of a timely appeal, the City Manager or designee shall promptly give written notice to the applicant and the appellant that an appeal has been taken and that the matter will be considered and heard by the City Council at a regular or adjourned regular meeting, the date of which shall be set forth in the notice, but in no event, to be more than forty-five (45) days or less than ten (10) days after such notice is mailed to the applicant and appellant. The City Council at the time of such hearing, shall consider all matters pertinent thereto and by its next meeting after such hearing, the City Council shall render its decision either upholding or reversing the action of the City Manager or designee, and/or modifying actions and conditions of the decision appealed from. Written notice thereof, unless waived by the applicant and/or appellant at the time of the hearing, shall promptly be mailed to the applicant and appellant by the City Manager or designee. The decision of the City Council shall be deemed final and conclusive. D. Conditions of Approval. The decision maker may approve or deny in its Page 45 of 146

46 discretion any application for a Ministerial Permit, Development Permit or Certificate of Approval pursuant to this Resolution, and may condition any approval with such terms and conditions as the decisionmaker determines are in furtherance of the purposes hereof. SECTION 5: Environmental Review. This Resolution is exempt from additional review under the California Environmental Quality Act (California Public Resources Code 21000, et seq., CEQA ) and CEQA regulations (14 California Code of Regulations 15000, et seq.). A. On the basis of evidence provided, and for the reasons set forth in Section 3, Paragraphs B and C, of the Ordinance, will not adversely affect adjoining property as to value or precedent, and will not be detrimental to the area. B. The Resolution does not authorize any new construction or use; rather, it merely prescribes a process that requires the vetting of environmental, land use and operational issues in connection with each permit application. As such, the Resolution is not a project under CEQA because: (1) it establishes "general policy and procedure making" (CEQA Guidelines 15378(b)(2); and (2) it constitutes "organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment (CEQA Guidelines 15378(b)(5)). C. The Resolution is self-mitigating insofar as it provides the means for avoiding environmental impacts, if any are identified, as part of each discretionary permit application. As stipulated in PHMC Section 10352C(7), each conditional use application is subject to separate environmental review under CEQA. Furthermore, as stipulated in PHMC Sections and 10542, conditional uses within the R-4, C-1 and M-1 zones may only be allowed so long as they will not be injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated. D. Issuance of ministerial permits for personal, non-commercial cultivation is categorically exempt as a Class 1 or Class 5 project in so far, at best, the activities that are authorized would constitute a minor alteration of existing public structures involving no expansion of use, or a minor alteration in land use limitations (see 14 CCR 15301, 15305). SECTION 6: Delegation of Authority. While this Resolution establishes the minimum requirements and qualifications for persons seeking to obtain a Certificate of Approval, the City Manager, or designee, is authorized to promulgate from time to time administrative policies and procedures ("AP&P") that implement PHMC Article III and this Resolution. The AP&P may add additional requirements, procedures and criteria but shall be consistent with the intent of PHMC Article III and this Resolution. Page 46 of 146

47 SECTION 7: The Mayor, or presiding officer, is authorized to sign this Resolution signifying its adoption by the City Council of the City of Port Hueneme and the City Clerk, or her duly appointed deputy, may attest thereto. SECTION 8: This Resolution will become effective immediately upon the effective date of the Ordinance and will remain effective unless repealed or superseded. PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF PORT HUENEME ON THIS DAY OF, ATTEST: MAYOR APPROVED AS TO FORM: PHNE/0001-1/DOC/001-2.DOC 5/17/ law Page 47 of 146

48 City of Port Hueneme COUNCIL AGENDA STAFF REPORT TO: FROM: City Council Rod Butler, City Manager Karl H. Berger, Deputy City Attorney SUBJECT: Workshop regarding draft Cannabis ordinances DATE: April 25, 2017 RECOMMENDATION: It is recommended the City Council consider: 1. Receiving and filing this report; 2. Providing direction to staff regarding next steps for amending the ordinances as desirable, if at all; and 3. Taking such additional, related, language that may be desirable. FISCAL IMPACT: There is no immediate fiscal impact to the General Fund or other funds. BACKGROUND/ANALYSIS: On April 3, 2017, the City Council considered the latest updates to the cannabis ordinances (previously considered during the March 22, 2017 special meeting). The staff reports and attachments from the April 3 rd meeting are attached for reference. During the meeting, the City Council discussed various items and heard from several individuals during public comment. Among other things, Mayor Figg provided written input regarding ordinances; a copy of his observations is included with this report along with comments from the City Attorney s office. Also attached are written comments from Ms. Mari Scott of the Ventura County Cannabis Alliance. These reflect her verbal comments during the April 3 rd meeting Page 48 of 146

49 regarding the cannabis ordinances (the City Attorney s office also provided responsive comments). Individual Councilmembers expressed concern regarding, without limitation, what qualifications must be possessed by applicants; the proposed locations of commercial cannabis operations within the City; local preference provided to applicants; and whether the City should allow contractual arrangements between permittees and the City. The last point was previously discussed by the City Council in the context of revenue generation, i.e., the pros and cons of voter approved taxes versus contractually based fees. Generally (i.e., through consensus), the City Council seemed to agree that applicants (a) should be able to demonstrate that they are financially qualified to engage in commercial cannabis operations (though this need not be a dollar threshold); and (b) there should be some preference for local applicants though what that might be is undetermined. Changes were made to the qualifications resolution to reflect these thoughts. The City Council was unable to agree on what direction to provide as to amending the draft ordinances (all motions failed on a 2-2 split). Consequently, the ordinances remain substantially the same as on April 3 rd. After receiving an update on the status of the cannabis ordinances on April 17, 2017, the City Council directed that a workshop be scheduled for April 25 th to try resolving all outstanding policy matters. There seem to be several big items regarding which the City Council should provide direction (this is not intended to be all-inclusive, but only what staff identified based upon the adopted meeting minutes from previous City Council meetings and the draft minutes from the April 3 rd meeting): 1. Should the City Council be able to approve cannabis operations via an agreement, e.g., a development agreement? 2. What is the method of revenue generation, i.e., should the City Council seek voter approval for a cannabis tax or should revenue be generated by other (as yet undetermined) method? 3. Is the City Council satisfied with the definitions set forth in the ordinances (please see below discussion regarding consolidation of regulations being proposed by the Governor)? 4. What is the appropriate CEQA review for these ordinances? Page 49 of 146

50 5. What are the appropriate threshold qualifications for applicants seeking to operate commercial cannabis facilities? 6. Should the ordinances require 24/7 access to commercial cannabis facilities for inspections by local law enforcement (this is a new item recently raised by law enforcement)? There are smaller issues that should also be cleaned up as part of the ordinary review of draft documents (e.g., uniformity in terms). From a staff perspective, however, the substantive issues are listed above. Please be aware of two noteworthy events occurring since the April 3 rd meeting. First, on April 4, 2017 Governor Brown proposed new legislation as part of the California Budget which, if adopted, would merge medical and recreational cannabis regulations into the Medicinal and Adult-Use Cannabis Regulation and Safety Act. This will likely affect the wording of any ordinances that the City Council eventually adopts, though the extent of such revisions is (at the moment) a bit speculative. Second, Attorney General Jeff Sessions issued a memorandum on April 5, That memorandum directs a federal task force reviewing crime reduction and public safety to submit initial recommendations for DOJ policy changes by July 27, 2017 including policies in the area of marijuana. One last item: on March 30, 2017, H.R was introduced in the House of Representatives. Entitled the Marijuana Revenue and Regulation Act, the Bill would (if adopted) delist cannabis as a Schedule I drug and, instead, regulate it substantially similar to tobacco or alcohol. Approving cannabis operations by Development Agreement (the DA Path ) The City Council was previously advised regarding the DA Path by the City Attorney s office. Since this continues being discussed as recently as April 17 th some additional thoughts seem appropriate. California Government Code 65864, et seq. (the Development Agreement Law ) authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property. The Development Agreement Law was enacted for the purposes of strengthening the public planning process; encouraging private participation and comprehensive planning; and identifying the economic costs of such development. It is generally utilized for large scale or complex projects that will be financed and built in phases over several years. The underlying public policy is that a development agreement will freeze land use laws and policies at the time it is Page 50 of 146

51 executed to give developers assurances that long term projects would still be allowed to be constructed. In return, cities are provided with public benefits in various forms including actual money. The DA Path advocates present several arguments in favor of the DA Path rather than (or in addition to) a zone change making cannabis operations a conditional use (presented in no particular order): (a) it provides the City with a potential revenue stream without the need for a voter-approved tax; (b) it speeds up the process by which the City can realize revenue generated by cannabis businesses in town; (c) it will protect the City from potential federal action; and (d) it may help the City obviate the need to change its zoning regulations and thus expedite legalization of such uses within the City. These arguments can be generally classified into two categories: (1) Speeding up the process; and (2) revenue generation. 1. Speeding Up the Process. Interpretative Zoning. Part of the DA Path is a proposition that the City utilize a provision of the Port Hueneme Municipal Code ( PHMC ) that allows the City to determine whether a land use not listed in the PHMC is substantially the same as another land use that is listed as permitted or conditionally permitted in the zone. Using this method, it is argued, would allow the City to determine that a cannabis facility is substantially the same as, for example, a pharmacy. As a result, the City would not need to amend the zoning regulations to permit a cannabis facility since it would be treated the same as a pharmacy, thereby speeding up the approval process PHMC 10201(c) provides: Interpretations. Judgments as to the application or interpretation of this Article shall be made by Resolution of the City Council when such judgments are made necessary by virtue of circumstances for which the procedures and requirements specified herein are unclear or otherwise create hardships inconsistent with the purpose and objectives served by this Article. Included herein shall be interpretations as to the appropriate zones within which unspecified uses may be permitted, judgments of which shall be based upon comparable uses and specified purposes of corresponding districts. 1 In essence, this is a recognition that the PHMC may not list every conceivable land use. There may be land uses that are so similar to those listed in the PHMC that they should be allowed within the applicable zone without the need for additional 1 Emphasis added. Page 51 of 146

52 legislative action by the City Council. Such uses should be afforded equal treatment as those actually listed within the PHMC. The City Council could certainly utilize this determination process. Here are some potential consequences: There can be no specialized development or operational standards for cannabis related uses. PHMC 10201(c) contemplates a determination that a particular use is substantially similar to one or more listed uses. If such a determination is made, then the new use is subject to the same standards and regulations as the listed use. That would be true even if the use were subject to a conditional use permit a CUP that applies to cannabis uses would need to incorporate the same types of standard conditions as those applicable to the listed use that is already conditionally permitted in the zone (imposing operational restrictions on a cannabis facility that are not generally applied to the similar use(s) in the zone would tend to contradict any determination that the two uses are so similar that that deserve the same treatment). Utilizing PHMC 10201(c) requires a determination that the cannabis land use is substantially the same as one or more uses already listed as permitted or conditionally permitted in a given zone. Here, the proposed ordinances contemplate allowing cannabis facilities within the C-1 and M-1 zones. For the C-1 Zone, it could be argued that drug stores would be a substantially similar use. A drug store, however, is permitted by right in the C-1 Zone, i.e., no CUP is required for that use. Consequently, no CUP could be required for a cannabis use. Conditional uses in the M-1 Zone include laboratory, research and manufacturing. The City Council could, therefore, make a determination that certain cannabisrelated land uses (i.e., cannabis manufacturing, cannabis testing laboratories) are substantially similar to those conditional uses and require a CUP. Again, the CUP would need to be substantially similar to those issued for existing laboratory, research and manufacturing land uses. If the City Council utilizes PHMC 10201(c) to make any of these determinations, then it is unlikely that the Development Agreement Law would support a development agreement. A development agreement cannot expand zoning regulations. 2 As previously discussed, the primary purpose of a development agreement is to allow a developer to guard against the risk of a change in zoning laws before enough work is performed on a project to acquire a vested right to right to complete the 2 Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th Verone v. City of West Hollywood (2015) 2015 WL Page 52 of 146

53 project. This is why development agreements are almost always associated with large-scale projects. In this case, relatively little work (and consequently, relatively little time) is required for a cannabis facility to become operational. Once a cannabis facility is operating (legally, with the benefit of all requisite governmental approvals), its right to continue operations is vested and a subsequent change in zoning regulations could not require the elimination of the use. Consequently, there would be little need for a developer to provide consideration in exchange for a vested right to operate a facility. An Alternative to Consider. If the City Council opts for the DA Path (please note, however, discussion that follows), it might consider an alternative to either the existing draft ordinances or the interpretative zoning reviewed above: a development agreement overlay zone. While this would still require that the PHMC be amended the overlay zone would need to be added it may implement the DA Path advocate s intent to move more swiftly. Moreover, it might also help facilitate the intent to contract with individual cannabis operators. This type of overlay zone is exceedingly unusual. It has, however, been upheld by at least one court in an unpublished opinion (since it is unpublished, it cannot be relied upon but does provide some useful indication of how a court might rule). 3 The regulations that were upheld by that court are included as an attachment. Legal Effectiveness. DA Path advocates are, of course, correct that the action of adopting an ordinance to approve a development agreement is legislative. The Development Agreement Law requires that development agreements be adopted by ordinance which is then subject to voter referendum. The development agreement, itself, however, is not legislation; it is a contract between the City and a developer that is subject to California contract law. 4 In California, contracts that are contrary to law or to the underlying public policy for that law (though not expressly prohibited) are illegal contracts; any illegality voids 3 Verone v. City of West Hollywood (2015) 2015 WL Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010) 191 Cal.App.4th 435, 442, Page 53 of 146

54 the entire contract. 5 This concept is uniformly applied to all contracts including development agreements. 6 Notably, advocates of the DA Path who previously provided public comment during City Council meetings acknowledge these rules. For example, Yilolife, Inc. (whose representatives spoke in favor of a DA Path on April 17 th ) states the following in its Securities and Exchange Commission ( SEC ) filings: Federal law could render contracts involving marijuana unenforceable. The sale and distribution of marijuana in certain states is legal subject to compliance with applicable state regulatory regimes. Federal law currently classifies marijuana as a controlled substance and its manufacture, sale, distribution, and use is illegal under federal law. The Department of Justice has indicated that it does not intend to interfere with the sale or distribution of marijuana in states where such sale and distribution is legal provided the state regulations are complied with. The Company indirectly derives a substantial portion of its revenues from leasing real estate and employees, from licensing intellectual property, from selling packaging, recipes, and certain ingredients. Because marijuana is illegal under U.S. federal law, U.S. courts may take the position that parties to contracts involving marijuana, whether directly or indirectly, may not enforce such contracts because they concern an illegal product or activity. 7 What happens if the development agreement is void? There would be no legal method by which the City can recover any of its consideration or expected revenue from a cannabis operator. A void contract cannot be enforced and, as a result, the City would lose all of the benefits identified by the DA Path including, without limitation, the expected revenue (see below). Though legally somewhat different (this case involved the Civil Asset Forfeiture Reform Act of 2000 which allows seizure and forfeiture of property involved with criminal activity), a real life example demonstrating the consequences of tangling with federal law may be helpful. In 2001 (notably, during the last Republican administration before President Trump s), federal law enforcement seized and sold real property in which significant public dollars (approximately $365,000) 5 Civil Code 1667; Green v. Mt. Diablo Hospital Dist. (1989) 207 Cal.App.3d 63, 73; Loving & Evans v. Blick (1949) 33 Cal.3d 603, See, e.g., Midway Orchards. County of Butte (1990) 220 Cal.App.3d 765, 783 (development agreement declared wholly void, ultra vires, and unenforceable because the general plan amendment needed for the agreement to be consistent with the general plan was timely referended). 7 (Emphasis in original) Preliminary Offering Circular filed by Yilolife, Inc. filed with the SEC July 6, 2016 File No Page 54 of 146

55 were invested to support a medical marijuana facility in California. That public agency did not recover its money, despite a petition to the United States Supreme Court. 8 The loan agreement executed between that medical marijuana facility and the public entity was moot. As a final note: a contract can contain iron-clad defense and indemnification clauses. If a contract is void, however, these are completely unenforceable. Moreover, even if a contract were valid, it would not protect the City against any federal prosecution; it could only potentially protect against potential civil proceedings made by third-parties, i.e., not the federal government (see above example from West Hollywood). 2. Revenue Generation. It is plain that the City Council is primarily interested in legalizing commercial cannabis operations to collect new revenue. An explanation was previously provided regarding why the safest method of collecting revenue from cannabis operations is through a voter-approved tax. The DA Path proposal, however, is to use a development agreement solely to collect new revenue. Cash payments that are used by a city to provide new or improve/expand existing public services can be part of the public benefits realized by the City through a development agreement. That, however, is not the public purpose for adopting the Development Agreement Law. 9 A development agreement is simply a bargained-for-exchange between a municipality and a developer. In exchange for vested rights for a fixed period of time (and the resulting insurance against changes in the zoning laws at the hands of a future incarnation of the legislative body), the developer provides certain public benefits. But, development agreements must include provisions for reservation or dedication of land for public purposes. 10 It is unclear how this mandatory ingredient would be applied to cannabis dispensaries. As discussed above regarding zoning, it seems unlikely that a development agreement would be required by an applicant for a cannabis facility; the land use would either be permitted as a matter of right, or as a conditional use. If development agreements are void (as outlined above), the City does not have any recourse to collect revenue from the cannabis operation. Yet, the cannabis 8 West Hollywood Community Redevelopment Commission v. United States of America (2006) 2006 WL , cert den. See also, stopthedrugwar.org/chronicle/2007/jan/18/feature_dea_makes_major_move_aga; 9 See, Government Code Government Code Page 55 of 146

56 business would have a strong argument that it continue operations it would (presumably) still be allowed as a land use. 3. Miscellaneous. Listed at the beginning of this report are several policy considerations for the City Council. The CEQA review was discussed in previous meetings as were the threshold issues for applicants seeking to operate cannabis facilities. There is no need to review those matters again in this report. Two other issues, however, may merit additional City Council consideration. The first is regarding definitions; the other is regarding operation requirements. Definition of school. Previous direction from the cannabis ad hoc committee (January 17, 2017) and the City Council (March 22, 2017) were to reconcile the definitions contained within the draft ordinances with existing California law including, without limitation, Proposition 64. At the March 29, 2017 meeting, the staff report noted the addition of a definition for school which is defined as any public or private school providing instruction in kindergarten; any grades 1 through 12; a day care center; or a youth center. A school does not include any private school in which education is primarily conducted in private homes. (Emphasis added). Since that time, several questions arose regarding definition, specifically the inclusion of the terms day care center and youth center. Health and Safety (regulating medical marijuana) provides that [f]or the purposes of this section, school means any public or private school providing instruction in kindergarten or grades 1 to 12, inclusive, but does not include any private school in which education is primarily conducted in private homes. Separately, however, Health and Safety Code prohibits consumption of cannabis products within 1000 of a school, day care center, or youth center while children are present at such a school, day care center, or youth center ; Health and Safety Code prohibits patients from smoking cannabis products within 1000 of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence ; Business and Professions Code provides that premises licensed under this division shall be located within a 600-foot radius of a school providing instruction in kindergarten or any grades 1 through 12, day care center, or youth center that Page 56 of 146

57 is in existence at the time the license is issued, unless a licensing authority or a local jurisdiction specifies a different radius ; and Business and Professions Code prohibits advertising of cannabis products within 1,000 feet of a day care center, school providing instruction in kindergarten or any grades 1 through 12, playground, or youth center. 11 Notably, there is no definition of school in the Education Code; separately, Black s Law Dictionary provides that a school is [a]n institution of learning and education, esp. for children. The definition provided in the draft ordinances is simply an attempt to implement the City Council s direction to reconcile local regulations with state law. If the City Council wishes to define school strictly in accordance with Health and Safety , that s certainly fine. That definition can always be subsequently changed if, for example, the Governor s effort to adopt uniform regulations as to cannabis is successful. Operations Requirements. The ordinances contemplate a number of different operational requirements for cannabis facilities. During the public examination of these ordinances, two matters were raised that the City Council may wish to consider (there may, of course, be more). A law enforcement agency suggested that the City may wish to include a requirement that cannabis facilities allow law enforcement access at all times (i.e., 24/7), not just during business hours. Separately, the ordinances currently prohibit more than $200 be left overnight in a cannabis facility. This raises a possibility that employees would leave the facility at the end of business with substantial cash and, consequently, act as an invitation for being robbed. The regulation was included in the ordinances to avoid property related crimes, e.g., burglaries. But, the issue can be addressed through a security plan approved by the Police Chief. Accordingly, the recommendation is to remove this requirement from the ordinances. ATTACHMENTS: The staff reports and attachments from the April 3 meeting. Responses to Mayor Figg s comments. Responses to Ms. Mari Scott comments. Redlined copy of changes to draft ordinance since April 3. Redlined resolution for threshold qualifications. Sample Development Agreement Overlay Zone. 11 Emphasis added. Page 57 of 146

58 PROPOSED CANNABIS ORDINANCE AND IMPLEMENTING RESOLUTION (Offered by Council Member Tom Figg; April 22, 2017) SUMMARY: A staff report has been issued in preparation for the Council s special meeting on April 25 th. Key policy issues consist of CEQA, Process and Revenues. Each of these issues are discussed below and provide a counterpoint to opinions expressed by staff. As many of us learned in the course of interviewing replacement legal counsel over the past two weeks, opinions and practices among legal counsel and the agencies they represent are highly variable; particularly in regard to cannabis. In consideration of those dynamics and inconclusive findings, I offer the following for consideration. RECOMMENDATION: 1. Direct staff to finalize the Cannabis Ordinance and companion Implementing Resolution subject to: (i) the redlined changes appearing in ATTACHMENT NO. 1 hereto; (ii) additional revisions as the Council may so direct; and (iii) non-substantive grammatical, terminology and typographic corrections as the City Attorney deems necessary. 2. Notice, advertise and schedule the finalized Cannabis Ordinance and companion Implementing Resolution for first reading and adoption at the earliest possible date. ITEM #1: CEQA CONSIDERATIONS Issue Summary: Title 14 of the California Code of Regulations ( CEQA Guidelines ), Section 15060(c) reads as follows: a lead agency must first determine whether an activity is subject to CEQA before conducting an initial study. An activity is not subject to CEQA if: (1) the activity does not involve the exercise of discretionary powers by a public agency; (2) the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; or (3) the activity is not a project as defined in Section Findings: The proposed Project entails the adoption of policies, procedures and regulations governing the local permitting process for marijuana cultivation, manufacturing and distribution of cannabis products exclusively for medicinal purposes expressly allowed under State law. The Project does not authorize any physical development, use establishment or operational authority; rather, the Project establishes the decision-making framework by which discretionary entitlements may be granted in the future. Each such decision and associated permit approval constitute independent discretionary actions that are individually subject to environmental analysis under CEQA. For the reasons and evidence provided in Section 5 herein, the Project will not be Page 58 of 146

59 detrimental to any area of the city or have an adverse effect on property values. To the contrary, the limited authorization of marijuana-related businesses and uses, together with the strict regulatory controls set forth herein, will have the effect of reducing crime in the city and promoting public health, safety and the general welfare. Recommended Action: Incorporate changes in Sections 7 and 11 of the proposed Cannabis Ordinance per ATTACHMENT NO. 2. ITEM #2: PROCESSING CONSIDERATIONS Issue Summary: Section of the City s Municipal Code ( PHMC ) provides an interpretative process for adding unspecified uses to specific zones without having to amend the Zoning Ordinance. This option would streamline the process and shorten the time required for Ordinance adoption by: (i) incorporating the regulatory framework of Medicinal Cannabis into Article III of the PHMC Public Health, Safety and Welfare; and (ii) establishing the use determination and allowable zone districts by means of Resolution. Findings: Medicinal Cannabis uses described under the proposed Ordinance (i.e., cultivation, manufacturing and distribution) can be appropriately classified as Conditional Uses within the R-4, C-1 and M-1 Zones. By making this determination through the interpretative provisions of Municipal Code Section (i.e., Resolution as opposed to Ordinance), while codifying overarching cannabis regulations in Article III of the PHMC, the result: (i) would not constitute formal amendment of the Zoning Ordinance; (ii) would streamline the process by negating amendment of the City s Local Coastal Program; and (iii) would further bolster the CEQA exemption by operation of Guideline Section 15378(a)(1) that defines a Project as including: enactment and amendment of zoning ordinances. An added benefit of following this process is to further simplify future amendments to the Cannabis Ordinance (codified in PHMC Article III as opposed to Article X) both with respect to accommodating Recreational Use (Proposition 64) as well as forthcoming State regulations that are presently under consideration. Recommended Action: Consolidate the inland and coastal Ordinances into a single document and recodify the Ordinance (with associated changes in language and PHMC section references) for adoption into Article III Public Health, Safety and Welfare. Restructure the Implementing Resolution to utilize the provisions of PHMC Section Please see ATTACHMENT NO. 1. ITEM #3: DEVELOPMENT AGREEMENT Issue Summary: At present, there is a disagreement (with resultant apprehensions) about using a Development Agreement in connection with the proposed Medical Cannabis Ordinance. Page 59 of 146

60 Findings: Understandably, the opinion offered by the City Attorney (Mr. Berger) is highly conservative pending a conclusive ruling by others (i.e., case law, etc.). At this juncture (unless Mr. Berger declares otherwise), there are no cited circumstances where the use of a Development Agreement (related to cannabis) has exposed a local government (or their elected or appointed officials) to more or less risk than any other form of local land use authority. If the lawfulness of the Council s actions are questionable, so should the Ordinance itself and not just the implementing tools (e.g., Conditional Use Permits and Development Agreements). Thus far, the lawfulness of Ordinance adoption has not been raised. Recommended Action: Follow the recommended actions discussed under Item #2 above and incorporate the language in ATTACHMENT NO. 3 into Section No. 2 of the Ordinance. ITEM #4: FINANCIAL CAPACITY Issue Summary: There is a shared desire to include financial wherewithal among the criteria in determining the suitability of a given commercial cannabis business. At issue is whether a specific dollar amount of capitalization should be imposed or whether more qualitative factors are more appropriate. Erroring on the high side would narrow the playing field to a select few, while a lower threshold could invite less capable operators. Findings: On the one hand, a dollar threshold provides a concrete measure of compliance, but conversely, such a measure is wholly arbitrary and could inadvertently disqualify applicants who might otherwise be a good fit given geographic location, size of operation and target cliental. Recommended Action: Incorporate Section 3.B.11 into the Implementing Resolution as shown in ATTACHMENT NO. 1. ITEM #5: MISCELLANEOUS REVISIONS Issue Summary: The public and Council alike have offered a variety of comments and suggested changes to the documents that were introduced on April 3 rd. Formal action by the Council was inconclusive as a result of deadlocked votes on separate motions. Consequently, staff has merely highlighted what are believed to be policy issues as set forth in pages 91 to 94 in the agenda package ( from Mari Scott). Recommended Action: Incorporate modifications as the Council so directs. Page 60 of 146

61 ATTACHMENT NO. 1 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PORT HUENEME AMENDING ARTICLE X OF THE MUNICIPAL CODE TO CONDITIONALLY PERMIT CANNABIS FACILITIES IN CERTAIN ZONES AND AUTHORIZE DELIVERY, CULTIVATION, MANUFACTURING, AND SALE OF MEDICAL CANNABIS PRODUCTS FROM MEDICAL MARIJUANA DISPENSARIES. The City Council of the City of Port Hueneme does ordain as follows: SECTION 1: The City Council finds and determines as follows: A. On November 5, 1996, the voters of the State of California approved Proposition 215, codified as Health and Safety Code Section , et seq., entitled the Compassionate Use Act of 1996 ( CUA ). The CUA exempts qualified patients and their primary caregivers from criminal liability under state law for the possession and cultivation of marijuana for personal medical use. B. The intent of the CUA is to enable persons in the State of California who are in need of marijuana for medicinal purposes to obtain it and use it under limited, specified circumstances. C. Health and Safety Code Section , et seq., ( Medical Marijuana Program Act, or MMPA ) clarifies the scope of CUA and allows cities and other governing bodies to adopt and enforce rules and regulations consistent with the MMPA. The MMPA created a state-approved voluntary medical marijuana identification card program and provided for certain additional immunities from state marijuana laws. D. The Federal Controlled Substances Act, 21 U.S.C. 801, et seq., classifies marijuana as a Schedule 1 Drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and that has not been accepted as safe for use under medical supervision. The Federal Controlled Substances Act makes it unlawful under federal law for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute, or dispense, marijuana. The Federal Controlled Substances Act contains no exemption for medical purposes. E. In 2015, the Medical Marijuana Regulation and Safety Act ( MMRSA ) became effective. MMRSA establishes a State licensing scheme for commercial medical marijuana uses while protecting local control by requiring that all such businesses must have a local license or permit to Page 61 of 146

62 operate in addition to a State license. MMRSA allows a city to completely prohibit commercial medical marijuana activities. F. The limited immunity from specified state marijuana laws provided by the Compassionate Use Act and Medical Marijuana Program does not confer a land use right or the right to create or maintain a public nuisance. G. In City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, the California Supreme Court held that [n]othing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land.... Additionally, in Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, the Court of Appeal held that there is no right and certainly no constitutional right to cultivate medical marijuana..... The Court in Maral affirmed the ability of a local governmental entity to prohibit the cultivation of marijuana under its land use authority. H. A statewide initiative entitled the Control, Regulate and Tax Adult Use of Marijuana Act ( AUMA ) was approved by voters on the November 2016 ballot. AUMA decriminalized (under California law), controls and regulates the cultivation, processing, manufacture, distribution, testing and sale of nonmedical marijuana, including marijuana products, for use by adults 21 years of age or older. AUMA also taxes the commercial growth and retail sale of marijuana. It does not, and cannot, affect federal regulations as to marijuana or its derivatives. I. AUMA expressly preserves local control over the regulation of marijuanarelated businesses and marijuana-related land uses (Business & Professions Code 26200, et seq.) SECTION 2: Authority. This Ordinance is adopted pursuant to the authority granted by the California Constitution and State law, including, without limitation, Article XI, Section 7 of the California Constitution; the Compassionate Use Act; the Medical Marijuana Program Act; the Medical Marijuana Regulation and Safety Act; and the Control, Regulate and Tax Adult Use of Marijuana Act. The city manager is authorized to administer this Ordinance and to promulgate such administrative policies and procedures that may be required to implement this Ordinance. SECTION 3: Zoning Findings. The City Council finds as follows: A. In light of recently adopted legislation, there are changed conditions since the existing zoning regulations became effective to warrant other or additional zoning regulations. B. This Ordinance will not adversely affect adjoining property as to value or precedent, and will not be detrimental to the area. Since 1996, twenty states Page 62 of 146

63 and the District of Columbia have legalized the use, home cultivation, and, in some cases, the retail dispensing of medical marijuana. In a study published March 26, 2014 in the journal PLOS One, researchers analyzed FBI crime statistics from eleven of these states between 1990 and (Morris RG, TenEyck M, Barnes JC, Kovandzic TV (2014) The Effect of Medical Marijuana Laws on Crime: Evidence from State Panel Data, PLoS ONE 9(3): e doi: /journal.pone ) The states included Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Vermont and Washington. The research revealed that laws authorizing the use and dispensing of medical marijuana are not predictive of higher crimes rates and, in fact, may be related to reductions in rates of homicide and assault. Robbery and burglary rates were found to be unaffected by medical marijuana legislation, despite widely-held belief to the contrary. The results of the study were consistent with other prior research suggesting that medical marijuana dispensaries may actually reduce crime in the immediate vicinity. Indeed, a U.S. National Institutes of Health study found that the psychopharmacologic effect of marijuana has been attributed to mellowing out or causing individuals to nod out, conditions that are likely to ameliorate violent tendencies. (U.S. Department of Health and Human Services, Public Health Service & National Institute on Drug Abuse, Drugs and Violence: Causes, Correlates and Consequences, NIDA Research Monograph 103, at 187 (1990)). The same study noted that marijuana use had no correlation to violent crime. (Id. at 8, 25, Table 6 and 232). Although there may be secondary impacts associated with marijuana dispensaries in the City, such as the possibility of increased crime at the facility, an increase in people loitering about the facility, and odors, the Council finds this ordinance adequately attempts to ameliorate such secondary impacts. Accordingly, there is substantial evidence to support the conclusion that this ordinance will not be detrimental to any area of the city or have an adverse effect on property values. To the contrary, it is anticipated that the limited authorization of marijuana-related businesses and uses contemplated by the ordinance, together with the strict regulatory controls set forth therein, will have the effect of reducing crime in the city and promoting public health, safety and the general welfare. C. This Ordinance promotes public health, safety and general welfare. Since 1996, twenty states and the District of Columbia have legalized the use, home cultivation, and, in some cases, the retail dispensing of medical marijuana. In a study published March 26, 2014 in the journal PLOS One, researchers analyzed FBI crime statistics from eleven of these states between 1990 and (Morris RG, TenEyck M, Barnes JC, Kovandzic TV (2014) The Effect of Medical Marijuana Laws on Crime: Evidence from State Panel Data, PLoS ONE 9(3): e doi: /journal.pone ) The states included Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Page 63 of 146

64 Vermont and Washington. The research revealed that laws authorizing the use and dispensing of medical marijuana are not predictive of higher crimes rates and, in fact, may be related to reductions in rates of homicide and assault. Robbery and burglary rates were found to be unaffected by medical marijuana legislation, despite widely-held belief to the contrary. The results of the study were consistent with other prior research suggesting that medical marijuana dispensaries may actually reduce crime in the immediate vicinity. Indeed, a U.S. National Institutes of Health study found that the psychopharmacologic effect of marijuana has been attributed to mellowing out or causing individuals to nod out, conditions that are likely to ameliorate violent tendencies. (U.S. Department of Health and Human Services, Public Health Service & National Institute on Drug Abuse, Drugs and Violence: Causes, Correlates and Consequences, NIDA Research Monograph 103, at 187 (1990)). The same study noted that marijuana use had no correlation to violent crime. (Id. at 8, 25, Table 6 and 232). Although there may be secondary impacts associated with marijuana dispensaries in the City, such as the possibility of increased crime at the facility, an increase in people loitering about the facility, or odors, the Council finds this ordinance adequately attempts to ameliorate such secondary impacts. Accordingly, there is substantial evidence to support the conclusion that the limited authorization of marijuana-related businesses and uses contemplated by the ordinance, together with the strict regulatory controls set forth therein, will have the effect of reducing crime in the city and would, therefore, promote public health, safety and the general welfare. D. This Ordinance will not adversely affect the City s General Plan or zoning regulations set forth in the Port Hueneme Municipal Code ( PHMC ) because this Ordinance does not inhibit the attainment of the overall goals of either the General Plan or the zoning regulations. SECTION 4: Coastal Plan Consistency. A. PHMC provides that any amendment to adopted development and use standards or boundary change to land situated within the California Coastal Zone constitutes an amendment of the City s Local Coastal Plan (LCP) and cannot become final until approval or certification is granted by the California Coastal Commission. On XX, 2017, the City Council conducted a public hearing to consider this Ordinance to amend the Implementing Component of the LCP (commonly referred to as Zoning Ordinance ). The City Council considered all public testimony, both written and oral, received in conjunction with the public hearing. The City s Planning Agency constitutes the City Council. Accordingly, the proposed LCP amendment is initiated by the City Council of the City of Port Hueneme acting for itself and as the planning agency. Page 64 of 146

65 B. Written notice of the availability of LCP public review draft documents pertaining to the proposed Ordinance amendment together with public hearing dates before the City Council was mailed to all governmental agencies and persons known to be interested in LCP matters. In addition, copies of the review draft documents were made available for public perusal at the Port Hueneme Civic Center, Ray D. Prueter Library, and South Central Coast Area Office of the Coastal Commission. Both notice and draft documents were mailed or delivered on XXX, a minimum of 21 days before the City Council s action on the proposal (see Public Resources Code 30514(d)(1)(A)). In addition, written notice of the proposal s public hearing before the City Council of the City of Port Hueneme was mailed to all governmental agencies and persons who were known to be interested in LCP matters and to all persons who have filed written request for such notice, which Notice was mailed not later than ten (10) calendar days before the date of said hearing and a 1/8 page display advertisement was published in a legal section of a newspaper of general circulation on XX, 2017 a minimum of ten calendar days before the date of said hearing with proposed response to comments supplied to commenting agencies a minimum of ten calendar days before the Public Hearing. C. The California Coastal Act is intended to protect natural and scenic resources; promote the public safety, health, and welfare; and protect public and private property, wildlife, marine fisheries, other ocean resources, and the natural environment and that California Coastal Commission Regulations establish the standards by which proposed land developments or other activities are evaluated to ensure consistency with the Act. D. Based upon substantial evidence in the record, the City Council finds that this LCP Amendment should be deemed de minimis in accordance with Public Resources Code 30514(d) as the uses authorized by this Ordinance would have no impact, either individually or cumulatively, on coastal resources. Specifically, this Ordinance is consistent with the policies and objectives of the California Coastal Act as follows (see, Public Resources Code 30200, et seq.): 1. The uses authorized by this Ordinance are not new since they are substantially similar to existing retail (e.g., alcohol and tobacco) establishments; light manufacturing (e.g., bakeries and cafes); agricultural cultivation (e.g., nurseries); and delivery services (e.g., United Parcel Service and FedEx). 2. Accordingly, such uses would not create new effects upon coastal access or marine life. 3. The uses authorized by this Ordinance do not interfere with coastal access. In terms of potential land use impacts, these uses are Page 65 of 146

66 substantially similar to existing light manufacturing and commercial land uses found throughout the Coastal Zone within the City s jurisdiction; 4. This Ordinance establishes general policies and procedures for processing applications related to the land uses authorized herein. Any individual project proposed for a particular area within the Coastal Zone would require subjective evaluation by the City Council and discretionary approvals. Consequently, all policies and objectives of the California Coastal Act and the City s LCP would be implemented when processing individual project applications to ensure full coastal access. 5. As set forth in attached Exhibit A, which is incorporated by reference, there are no properties that would be suitable for wateroriented activities or visitor-serving commercial recreational facilities. Exhibit A is a graphical depiction of properties affected by this Ordinance and is for illustrative purposes only. 6. All properties upon which the approved land uses could be situated are already developed or, if currently undeveloped, within a fully urbanized area. Consequently, such properties are not feasible for environmentally sensitive habitat or agricultural development. 7. Further, such properties are sufficiently proximate to appropriate public services and resources for commercial development purposes. E. This Ordinance is consistent with and furthers the objectives and policies of the City s General Plan, zoning regulations, and Local Coastal Program and provides for the orderly growth, development, and use of properties and activities in the City of Port Hueneme. F. Pursuant to Public Resources Code 30510, the City Council of the City of Port Hueneme reiterates its intent to implement the Local Coastal Program and amendments thereto in a manner fully consistent with the California Coastal Act and to issue coastal development permits for the total area included in the City s certified LCP. SECTION 5: Article III, Chapter 12 of the Port Hueneme Municipal Code is amended to read as follows: Chapter 12 CANNABIS Page 66 of 146

67 3980 Cannabis regulations. For regulations regarding sale, delivery, cultivation, and manufacturing of cannabis, see Article X, Chapter 2, Part F. SECTION 5: Article X, Chapter 2, Part F of the Port Hueneme Municipal Code is amended to read as follows: Purpose. Part F COMMERCIAL CANNABIS ACTIVITY This Part is adopted pursuant to the city s police powers and municipal affairs provision of the City Charter for the purpose of permitting commercial cannabis activity for medical purposes in compliance with state and local laws. Nothing in this Part is intended to, nor does it, duplicate or conflict with applicable local, state, or, to the extent constitutionally permissible, federal laws General Prohibitions. A. It is unlawful for any person to engage in commercial cannabis activity without a valid Development Permit issued pursuant to this Part for each location at which the activity is proposed to occur. B. Unless otherwise provided by this code, it is unlawful for any person to engage in commercial cannabis activities from other than a fixed location within the city s jurisdiction. C. It is unlawful for any person to cause, permit, aid, abet, or conceal a violation of any provision of this Part. D. Except as expressly authorized pursuant to this code, commercial cannabis activities are prohibited in the City of Port Hueneme Permitted Commercial Cannabis Activity. Subject to applicable State law and this Part, commercial cannabis activity is permitted when approved by the City in accordance with this code and only if related to medical purposes. Commercial medical cannabis activities related to recreational uses are unlawful. Specifically, the following commercial cannabis activities are allowed as they relate to medical purposes: A. Sale; A. Except as otherwise provided for personal use, indoor cultivation; Page 67 of 146

68 B. Delivery; and C. Manufacturing Definitions. Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this Part. Words and phrases undefined in this Part have the same meaning as set forth in the Adult Use of Marijuana Act; the Compassionate Use Act; the Medical Marijuana Program Act; or the Medical Marijuana Regulation and Safety Act. Cannabis means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. Cannabis also means the separated resin, whether crude or purified, obtained from marijuana. Cannabis also means marijuana as defined by Health and Safety Code Section Cannabis does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this Part, cannabis does not mean industrial hemp as defined by Food and Agricultural Code Section of the or Health and Safety Code Section For purposes of this Code, marijuana has the same meaning as cannabis and the two terms are used interchangeably. Commercial cannabis activity includes cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product, except as set forth in Business and Professions Code Section 19319, related to qualifying patients and primary caregivers. Cultivation means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis. Delivery means the commercial transfer of medical cannabis or medical cannabis products from a facility, up to an amount determined by the bureau to a primary caregiver or qualified patient as defined in Health and Safety Code Section , or a testing laboratory. Delivery also includes the use by a facility of any technology platform owned and controlled by the facility, or independently licensed under California law, which enables qualified patients or primary caregivers to arrange for or facilitate the commercial transfer by a licensed facility of medical cannabis or medical cannabis products. Page 68 of 146

69 Director means the city manager, or designee. Facility and medical marijuana dispensary mean a facility at which commercial cannabis activity occurs as authorized by this Part including, without limitation, a medical marijuana collective. Identification card means a document issued either by a governmental agency, e.g., the California Department of Health Services, or other valid documentation that identifies a person authorized to engage in the medical use of marijuana and the person s designated primary caregiver, if any. Medical marijuana collective means a collective, cooperative, association, dispensary or similar entity that cultivates, distributes, dispenses, stores, exchanges, processes, delivers, makes available or gives away cannabis in the city for medical purposes to qualified patients, or primary caregivers of qualified patients pursuant to Health and Safety Code or any State regulations promulgated to implement the Compassionate Use Act of Medical Marijuana Collective does not include the following uses, so long as such uses comply with this Code and other applicable law: A. A clinic licensed pursuant to Health and Safety Code 1200, et seq. B. A health care facility licensed pursuant to Health and Safety Code 1250, et seq. C. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Health and Safety Code , et seq. D. A residential care facility for the elderly licensed pursuant to Health and Safety Code 1569, et seq. E. A hospice or a home health agency licensed pursuant to Health and Safety Code 1725, et seq. Operations Plan means an operating plan approved by the police chief, that implements the standard requirements of this Part along with such additional, reasonable, criteria needed to protect public health and safety as determined by the police chief, based upon the size and location of the proposed facility. Medical cannabis, medical cannabis product, or cannabis product has the same meaning as set forth in Business & Professions Code (ag), as the same may be amended from time to time. Person with an identification card means an individual who is a qualified patient who has applied for and received a valid identification card. Page 69 of 146

70 Police Chief means the police chief, or designee. Primary caregiver means the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person, and may include any of the following: A. In any case in which a qualified patient or person with an identification card receives medical care or supportive services, or both, from a clinic licensed pursuant to Health and Safety Code Section 1200, et seq., a health care facility licensed pursuant to Health and Safety Code Section 1250, et seq., a residential care facility for persons with chronic life-threatening illness licensed pursuant to Health and Safety Code Section , et seq., a residential care facility for the elderly licensed pursuant to Health and Safety Code Section 1569, et seq., a hospice, or a home health agency licensed pursuant to Health and Safety Code Section 1725, et seq., the owner or operator, or no more than three employees who are designated by the owner or operator, of the clinic, facility, hospice, or home health agency, if designated as a primary caregiver by that qualified patient or person with an identification card. B. An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver. C. An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card. D. A primary caregiver must be at least 21 years old, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Family Code Sections 6922, 7002, 7050, or Qualified patient means a person who is entitled to the protections of Health and Safety Code Section School means any public or private school providing instruction in kindergarten; any grades 1 through 12; a day care center; or a youth center. A school does not include any private school in which education is primarily conducted in private homes. Page 70 of 146

71 Testing Service has the same meaning as set forth in Health and Safety Code Youth center means any public or private facility that is primarily used to host recreational or social activities for minors including, without limitation, private youth membership organizations or clubs, social service teenage club facilities, video arcades, or similar amusement park facilities State License Required; Timing. To engage in commercial cannabis activity allowed by this Part, a person must obtain the following: A. First, a Development Permit as required by this Part. B. After obtaining a Development Permit issued by this Part, a person must thereafter obtain and maintain, a Type 6 (Manufacturer 1) license issued by the California Department of Consumer Affairs. Additionally, and depending on the type of Development Permit issued pursuant to this Part, e.g., whether delivery or manufacturing is authorized, a person must also obtain a Type 10 or 10A license issued by the California Department of Consumer Affairs. C. Notwithstanding any other provision of applicable law, a Development Permit issued by this Part will be rendered void should a person fail to obtain or maintain a license required by this Section Development Permit; Qualifications and Timing Set by Resolution. To protect public health and safety, and to further ensure that commercial cannabis activities permitted by this Part are in the public interest, the City Council may establish the procedures for determining the qualifications of persons allowed to apply for a Development Permit by resolution. Any such city council resolution may also establish the method, including timing, for objectively selecting persons that may apply for a Development Permit pursuant to this code Limitations on City s Liability. A. To the fullest extent permitted by law, the city does not assume any liability whatsoever, with respect to approving any permit pursuant to this code or the operation of any facility approved pursuant to this code. B. As a condition of approval for any permit as provided in this code, the applicant or its legal representative must: 1. Execute an agreement indemnifying the city from any claims, damages, injuries, or liabilities of any kind associated with the registration or operation of the facility or the prosecution of the Page 71 of 146

72 facility or its owners, managers, directors, officers, employees, or its qualified patients or primary caregivers for violation of federal or state laws; 1. Maintain insurance in the amounts and of the types that are acceptable to the city manager or designee; 2. Name the city as an additionally insured on all city required insurance policies; 3. Agree to defend, at its sole expense, any action against the city, its agents, officers, and employees related to the approval of a regulatory permit; and 4. Agree to reimburse the city for any court costs and attorney fees that the city may be required to pay as a result of any legal challenge related to the city s approval of a permit. The city may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation does not relieve the operator of its obligation hereunder Location Criteria. FACILITIES A. Facilities are conditionally permitted only in the C-1 (General Commercial) and M-1 (Light Industrial) Zone. Each physical location of a facility requires a separate Development Permit. This section does not require the City to issue any particular number of Development Permits or to issue any Development Permits at all. B. It is unlawful for any portion of the parcel on which a facility is located to be within 600 minimum feet of any parcel that contains a school. C. If a facility is located above the ground floor, it must be accessible to persons with disabilities in conformance with applicable law including, without limitation, the California Building Code as adopted by this code. D. A Development Permit may be renewed for a facility located on a parcel that is within 600 feet of a school if: (1) the school located to the area after the Development Permit was first issued; (2) the Development Permit has not lapsed for any period of time; and (3) the facility was in continuous operation. For purposes of this section, a temporary interruption of business activity due to fire, natural disaster or other force majeure is excused provided reasonable steps are taken by the permittee to resume business operations expeditiously. The prior, temporary suspension of a Page 72 of 146

73 Development Permit does not render a permit ineligible for renewal under this section provided the applicant otherwise qualifies for renewal Operations Plan and Standards. A. A Development Permit issued for a facility must include, as conditions of approval, the operations standards set forth below. In addition, the Development Permit must incorporate by reference an Operations Plan approved by the police chief, that implements not only the operations standards set forth in this Section, but such additional conditions that the police chief, finds reasonably necessary to implement the purpose of this Part when considering the location and size of the proposed facility. B. Except as otherwise provided, a facility can only be open for access to the public only between the hours of 9:00 a.m. and 9:00 p.m. C. It is unlawful for alcohol or tobacco to be sold within the facility. Further, it is unlawful for smoking, vaporization, ingestion or consumption of alcohol, tobacco or medical marijuana in any form, to occur on the premises of a facility or in the areas adjacent to the facility on the same parcel (e.g., parking lots, walkways). D. It is unlawful for cannabis or cannabis products or graphics depicting cannabis or cannabis products to be publicly visible from the exterior of the property. It is unlawful to store cannabis or cannabis products outside of the facility at any time. E. All cannabis and cannabis products allowed to be sold or otherwise made available at a facility must be cultivated, manufactured, and transported by licensed facilities that maintain operations in full conformance with State and local regulations including, without limitation, certification by a testing service as required by applicable law. F. It is unlawful for a physician located in, or on the same parcel as, a facility at any time for the purpose of evaluating patients to issue a medical marijuana prescription or card. G. Before dispensing cannabis or cannabis products to any person, the facility must verify that the person possesses a valid identification card. H. Each facility must provide the police chief, with the name and telephone number of an on-site employee or owner to whom emergency notice can be provided. The telephone number provided must be capable of accepting recorded voice messages in the event the contact person does not answer. Page 73 of 146

74 I. Except for employees of the facility, it is unlawful for any person to be allowed into any area of a facility where medical cannabis products are displayed and/or being offered for sale unless that person is authorized to engage in the medical use of marijuana and has a valid identification card (as defined in Section 10292), or is named as a designated primary caregiver on a valid identification card. It is unlawful for any person under the age of 21 to be present in any area of a facility where medical cannabis products are displayed and/or being offered for sale unless that person satisfies one of the foregoing criteria and is accompanied by a parent or legal guardian. A sign must be posted at each entrance to a sales/display area of the facility informing patrons of these restrictions. J. It is unlawful for any person under age 21 to be present in any lobby or reception area of a facility unless that person is a qualified patient or primary caregiver and is accompanied by a parent or legal guardian. K. It is unlawful for any person to employ any other person at a facility who is not at least 21 years of age. L. Each entrance to a facility must be posted with a conspicuous notice stating that smoking, vaping, ingesting, or otherwise consuming cannabis on the premises or in the areas adjacent to the facility is prohibited. M. Dispensaries can only dispense medical cannabis or cannabis products to a person with an identification card, as defined in Section N. Entrances into any area of a facility where medical cannabis products are displayed and/or being offered for sale must be locked at all times with entry strictly controlled. A buzz-in electronic/mechanical entry system must be utilized to limit access to such areas and to separate them from the outside and/or any adjacent reception/lobby area. The specifics of such entry system must be set forth in the operations plan. O. Uniformed security personnel must be employed to monitor all entrances and exits of the facility and to serve as a visual deterrent to unlawful activities during all hours of operation. Every security guard employed by or provided by the facility must be currently licensed by the California Bureau of Security & Investigative Services and in possession of a valid guard card. The number of such security personnel must be set forth in the operations plan. P. All restroom facilities serving a facility must remain locked and under the control of management. Page 74 of 146

75 Q. Odor control devices and techniques must be incorporated in a facility to ensure that odors from marijuana are not detectable outside of the facility or in any tenant space or area adjacent to the facility. R. It is unlawful for any person within a facility to provide cannabis or cannabis products to any individual in a quantity not consistent with personal use. S. A facility cannot store more than $ in cash reserves overnight on the premises. T. All law enforcement and code enforcement personnel seeking admission to the facility for the purpose of ascertaining compliance with the standards and regulations of this code must be given unrestricted access to all areas of the premises at all times during hours of operation. Consent to such unrestricted access must be acknowledged by the permittee and included within the operations plan. U. All interior spaces of the facility which are open and accessible to the public (except restrooms), and all entrances and exits to and from the premises, must be monitored by 24-hour video security surveillance of at least HD quality with night vision capability. The video security system must be compatible with software and hardware utilized by the city as determined by the Police Chief and set forth in the operations plan. Surveillance video must be recorded to a device that is securely located on the premises and all footage must be maintained for a minimum of 45 days. The video surveillance system specifications must be set forth in the operations plan before the city issues a certificate of occupancy for the facility. V. A facility must have a professionally installed, maintained, and monitored alarm system as approved through the operations plan. W. A facility must maintain a valid business license as required by this code. X. All food products, food storage facilities, food-related utensils, equipment and materials must be approved, used, managed and handled in accordance with the provisions of the California Retail Food Code (Health & Safety Code et seq.). All food products must be protected from contamination at all times, and all food handlers must be clean, in good health, and free from communicable diseases. The Ventura County Department of Environmental Health may inspect the facility at any time during business hours to ensure compliance with this Section. Y. Except as otherwise provided, baked cannabis products (e.g., brownies, bars, cookies, cakes), tinctures, and other non-refrigerated items may be sold at a facility. Page 75 of 146

76 Z. As part of the operations plan, permittees must execute an agreement in a form approved by the City Attorney that defends and indemnifies the City of Port Hueneme, along with its officials, officers, and employees, from any claim or liability arising from the city approving a Development Permit or allowing the operation of a facility. Such agreement must be secured with sufficient insurance, as determined by the City Attorney, and a surety, as approved by the City Attorney, to adequately protect the city from any and all liability. AA. A Development Permit for a facility is subject to all of the regulations and operational standards set forth in this section in addition to the conditions stated in the permit itself Community Relations. A. Each facility must provide the city manager or designee with the name, telephone number, and address of an on-site community relations or staff person or other representative to whom the city can provide notice if there are operating problems associated with the facility or refer members of the public who may have any concerns or complaints regarding the operation of the facility. Each facility must also provide the above information to all businesses and residences located within 100 feet of the facility. A. During the first year of operation of a facility authorized under this Part, the owner, manager, and community relations representative from each such facility must attend a monthly meeting with the city manager and/or designee to discuss costs, benefits and other community issues arising as a result of implementation of the permits authorized by this code. After the first year of operation, the owner, manager, and community relations representative from each such facility must meet with the city manager and/or designee when and as requested by the city manager or designee. CULTIVATION Outdoor Cultivation Prohibited; Exception. Except for personal use, as provided below, outdoor cultivation of cannabis is prohibited in all areas of the city Operational Standards for Cultivation. In addition to all other requirements of an Operations Plan required by this Part, facilities engaged in indoor cultivation must include the following in an Operations Plan approved by the police chief: A. The facility can have only one contiguous cultivation area. Page 76 of 146

77 B. It is unlawful to use flammable or explosive substances in the cultivation of cannabis. C. Facilities engaged in cultivation must follow all pesticide use requirements of local, state and federal law. D. The Operations Plan must include a detailed electrical and plumbing plan, along with projections for water usage. E. All law enforcement personnel seeking admission to the cultivation site for the purpose of ascertaining compliance with the standards and regulations of this code must be given unrestricted access to all areas of the premises at all times during hours of operation. Consent to such unrestricted access must be acknowledged by the permittee and included within the Operations Plan. F. It is unlawful for any person under the age of 21 to be present within the area where the cultivation of cannabis is occurring. A sign must be posted at each entrance to a cultivation facility informing visitors of these restrictions. G. All cultivation activity must be conducted in compliance with all applicable state and local water conservation laws, ordinances, and regulations. H. Each cannabis cultivation facility must provide the police chief with the name and telephone number of an on-site employee or owner to whom emergency notice can be provided. The telephone number provided must be capable of accepting recorded voice messages in the event the contact person does not answer. I. It is unlawful for any person to employ another person under the age of 21 at a cannabis cultivation facility. J. Entrances into any area of a cannabis cultivation facility where cannabis is grown or kept must be locked at all times with entry strictly controlled. The specifics of such entry system must be set forth in the Operations Plan. K. Odor control devices and techniques must be incorporated in a cannabis cultivation facility to ensure that odors from cannabis are not detectable outside of the facility or in any tenant space or area adjacent to the facility. L. A cannabis cultivation facility must have a professionally installed, maintained, and monitored alarm system as approved through the Operations Plan. Page 77 of 146

78 M. Cannabis cultivation facilities cannot be open to the public, though the facility may dispense cannabis in accordance with a Development Permit. N. A cannabis cultivation facility must be equipped with an automated fire suppression system to the satisfaction of the Building Official. O. It is unlawful for any cannabis cultivation facility to use, employ, or maintain any equipment, system, material or apparatus for the purpose of increasing the ambient carbon dioxide levels within any grow area Personal Cultivation; Standards and Regulations. Outdoor cultivation of cannabis for personal use in accordance with State law may only be permitted on a singlefamily residential parcel in the R-1 Zone, and only when that parcel contains, wholly within its boundaries, a legally permitted single-family residential dwelling. Outdoor cultivation of medical cannabis is prohibited in all other zones Personal Cultivation; Development and Operational Standards. A. Not more than six cannabis plants of any size may be cultivated on any parcel regardless of the number of qualified patients or caregivers residing on the property. B. At least one qualified patient or one primary caregiver must reside on the property. C. Cultivation cannot exceed 75 square feet in cumulative area. D. All cannabis cultivation must be fully enclosed by an opaque, wooden fence six feet in height. The fence must be at least ten feet from any structure on the property and be adequately secure to prevent unauthorized entry and theft. The police chief, will determine the level of security necessary. E. It is unlawful to cultivate cannabis within 600 feet of any other parcel containing a school. F. No lighting, heaters, fans, generators or other mechanical equipment that may cause a nuisance to neighbors may be used in connection with the cultivation of medical cannabis. G. It is unlawful to cultivate cannabis in the front yard area of any parcel. H. It is unlawful to cultivate cannabis within the required rear or side yard setbacks of any parcel. I. It is unlawful for there to be any audible or olfactory evidence of cannabis cultivation from any street, sidewalk, public right-of-way, or adjacent Page 78 of 146

79 property, or any visual evidence of cannabis cultivation when viewed from five feet above ground level from any street, sidewalk, public right-of-way, or adjacent property. J. Qualified patients for whom the cannabis plants are being cultivated must have valid identification issued by a recognized government agency. Any primary caregiver cultivating cannabis plants for a qualified patient must keep a copy of the qualified patient s valid identification on the premises where the cannabis is cultivated. K. The cultivation of medical cannabis is permitted for non-commercial purposes only. It is unlawful to sell, trade, barter, or engage in any other commercial exchange of cannabis or cannabis products cultivated pursuant to this section. L. The address of any dwelling on a parcel where medical cannabis is cultivated must be posted and plainly visible from the public right-of-way. M. Cultivation of medical cannabis cannot occur on any property where a parolee or probationer resides unless the parolee or probationer has received confirmation from a court of competent jurisdiction that he or she is allowed to use medical cannabis while on parole or probation pursuant to Health and Safety Code section Such confirmation must be provided to city staff or law enforcement upon request. N. Any law enforcement personnel may, after providing 24 hours notice, enter onto the property where cultivation of medical cannabis is occurring pursuant to this section for the purpose of inspecting the cultivation site and perimeter fencing. This section does not purport to authorize any law enforcement personnel to enter any dwelling located on the property. For purposes of this section, notice is sufficient if posted at the entrance to the dwelling on the property or if hand delivered to any person over the age of 18 residing on the property. O. Any person issued a permit pursuant to this section must follow all pesticide use requirements of local, state and federal law. P. It is unlawful for any person under the age of 21 to be present within the fenced area where the cultivation of medical cannabis is occurring unless such person is a qualified patient or a primary caregiver and he or she is in the presence of his or her parent or guardian. Q. All cultivation activities must be conducted in compliance with all applicable state and local water conservation laws, ordinances, and regulations. Page 79 of 146

80 R. Nothing in this section is intended to authorize the cultivation, possession, or use of cannabis for nonmedical purposes in violation of state or federal law. S. Medical cannabis cultivation permits issued pursuant to this section are personal and nontransferable. No vested right to continue the cultivation of medical cannabis on any property can accrue by virtue of the activity having occurred continuously for any period of time. T. Notwithstanding any other provision of this code, or applicable law, no variances are permitted from any of the regulations in this section Delivery. DELIVERY A. A Development Permit for a facility may authorize the mobile delivery of medical cannabis as part of and in conjunction with the operation of the facility. Deliveries by dispensaries other than those authorized by this Part are unlawful. Mobile delivery privileges may be suspended or terminated by the city manager, as set forth in this code. B. Delivery of cannabis from a facility permitted pursuant to this Part can only be made in a city or county that does not expressly prohibit such deliveries by ordinance. C. It is unlawful for any person under the age of 21 to be allowed to serve as a delivery driver and no person can employ a person under the age of 21 for the purpose of making mobile deliveries of any medical cannabis product. D. A facility permitted pursuant to this Part may have its delivery privileges suspended or terminated by the city manager if the facility is found to have violated this Part. MANUFACTURING Operations Plan; Additional Requirements. In addition to any other requirements, a facility engaged in manufacturing cannabis products must include, as conditions of approval for a Development Permit an Operations Plan required by this Part Operational Standards. A. The manufacture of cannabis products must be undertaken in a manner that ensures the health, safety, and welfare of the public, the employees of the cannabis business, visitors, and neighboring properties. Page 80 of 146

81 B. All law enforcement and code enforcement personnel seeking admission to the manufacturing site for the purpose of ascertaining compliance with the standards and regulations of this code must be given unrestricted access to all areas of the premises at all times during hours of operation. Consent to such unrestricted access must be acknowledged by the permittee and included within the Operations Plan. C. It is unlawful for any person under the age of 21 to be present within the area where the manufacture of cannabis products is occurring. A sign must be posted at each entrance to a manufacturing facility informing visitors of these restrictions. D. All manufacturing activity must be conducted in compliance with all applicable state and local water conservation laws, ordinances, and regulations. E. It is unlawful for any person to employ another person under the age of 21 at a cannabis manufacturing facility. F. Entrances into any area of a cannabis manufacturing facility where cannabis products are made or kept must be locked at all times with entry strictly controlled. The specifics of such entry system must be set forth in the Operations Plan. G. Odor control devices and techniques must be incorporated in a cannabis manufacturing facility to ensure that odors from cannabis are not detectable outside of the facility or in any tenant space or area adjacent to the facility. H. A cannabis manufacturing facility must have a professionally installed, maintained, and monitored alarm system as approved through the Operations Plan. I. It is unlawful for cannabis manufacturing facilities to be open to the public. ENFORCEMENT Enforcement of Cannabis Development Permits; Generally. In addition to other remedies set forth in this code, violations of this section may be prosecuted as infractions or misdemeanors at the City Attorney s discretion and may be abated as public nuisances. The remedies provided by this section are cumulative and in addition to any other criminal or civil remedies City Attorney Enforcement Authority. In addition to any other general functions, powers, and duties given to the City Attorney by this code or California law, the City Attorney is authorized to: Page 81 of 146

82 A. Prosecute on behalf of the people all criminal and civil cases for violations of this section including, without limitation, administrative or judicial nuisance abatement and suits for injunctive relief; B. Prosecute all actions for the recovery of fines, penalties, forfeitures, and other money accruing to the city under this section Administrative Suspension and Revocation. A. Suspension or Revocation. In addition to any other penalty authorized by law, the director may suspend or revoke a Development for the following reasons: 1. Upon learning or discovering facts that require permit denial under this section that were not previously disclosed or reasonably discoverable; or 2. If the permittee violates any condition imposed by this section. B. Notice of Suspension or Revocation. If, after having determined that a person is violating this section, the director elects to suspend or revoke a medical cannabis cultivation permit, the director must serve a notice of suspension of revocation on the permittee. The notice must state the basis of such violations and provide information regarding the right to appeal. Suspension or revocation of the permit shall not become effective until the time for filing an appeal has passed or, if an appeal is timely filed, until the city manager has rendered a final decision on the appeal Appeal of Notice of Suspension or Revocation. A. A notice of suspension or revocation of a medical cannabis cultivation permit may be appealed to the city manager, provided that a request for review (appeal) is filed with the office of the city manager within ten calendar days from the date on which the written notice of suspension of revocation was served on the permittee. If a request for review is untimely, the city manager may, but is not required to, extend the time for commencing such review for good cause shown. B. A request for review must be on a form provided by the community development department and contain the following information: 1. The name, address and telephone number of the person making the request; Page 82 of 146

83 2. A description of the decision, determination or order which is the subject of the review and the date such decision, determination or order was made or issued; 3. A complete description of all grounds for making the request, together with any evidence in support of the request; and 4. Such other information as may be required by the director. C. Upon receiving a request for review, the city manager will review the request and, within ten business days of receiving the request, provide the appellant with a written notification that: 1. The director s decision is affirmed; 2. The director s decision is modified; or 3. The director s decision is reversed. D. The city manager may, but is not required to, conduct a hearing at a time, place and manner determined in the city manager s sole discretion. Should a hearing occur, the city manager may issue a decision orally at the conclusion of the hearing, but also notify the appellant and director in writing of the city manager s decision. E. The city manager s decision is final. There is no right of appeal to the City Council Right to Judicial Review. A final decision of the city manager may be judicially reviewed pursuant to Code of Civil Procedure Section No New Permit After Revocation. Should a medical cannabis cultivation permit be revoked, the former permittee is presumptively disqualified to apply for a new permit in accordance with this section. This presumption may be overcome upon a showing of good cause as to why a permit should be issued following a revocation. Any such showing must be made to the director s satisfaction Attorney s Fees. Where a civil action is filed, the prevailing party is entitled to reasonable attorneys fees, but is limited by the amount of attorneys fees claimed by the city. If the court issues an order or a judgment which finds a public nuisance to exist, and orders or approves the abatement of the public nuisance, or where the court validates an accounting, the court will also award the city its actual costs of abatement, including, without limitation, reasonable attorneys fees incurred by the city in such judicial proceeding. Page 83 of 146

84 Remedies Cumulative. The remedies provided by this section are cumulative and in addition to any other criminal or civil remedies including, without limitation, those set forth elsewhere in this code. SECTION 6: Subparagraph (K) is added to Section of the Port Hueneme Municipal Code to read as follows: K. Facility, as defined in Section 10292, subject to all conditions and regulations in Sections and SECTION 7: Environmental Review. This Ordinance is exempt from additional review under the California Environmental Quality Act (California Public Resources Code 21000, et seq., CEQA ) and CEQA regulations (14 California Code of Regulations 15000, et seq.) because it does not involve any commitment to a specific project which could result in a potentially significant physical impact on the environment and establishes rules and procedures to implement an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. Accordingly, this Ordinance does not constitute a project that requires environmental review (see specifically 14 CCR 15378(b)(2, 5)). Even if the Ordinance were to qualify as a project, it would be categorically exempt as a Class 1 or Class 5 project since, at best, it would constitute a minor alteration of existing structures involving no expansion of use, or a minor alteration in land use limitations (see 14 CCR 15301, 15305). The City will conduct environmental review of each individual project affected by this Ordinance. SECTION 8: Construction. This Ordinance must be broadly construed in order to achieve the purposes stated in this Ordinance. It is the City Council s intent that the provisions of this Ordinance be interpreted or implemented by the city and others in a manner that facilitates the purposes set forth in this Ordinance. SECTION 9: Enforceability. Repeal of any provision of the Port Hueneme Municipal Code does not affect any penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties for any violation occurring before this Ordinance s effective date. Any such repealed part will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Ordinance. SECTION 10: Severability. If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable. SECTION 11: The City Manager, or designee, is authorized to file documents with the California Coastal Commission and to provide such additional documents and information with appropriate governmental agencies as may be required to implement this ordinance and that the LCP amendment will take effect after approval by the Page 84 of 146

85 California Coastal Commission and acceptance by resolution of the City Council consistent with applicable law including, without limitation, 14 California Code of Regulations SECTION 12: The City Clerk is directed to certify the passage and adoption of this Ordinance, cause it to be entered into the city of Port Hueneme s book of original ordinances, make a note of the passage and adoption in the records of this meeting, and, within fifteen days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. SECTION 13: This Ordinance will take effect on the 31 st day following its final passage and adoption. PASSED AND ADOPTED this day of, 2017 ATTEST:, City Clerk, Mayor APPROVED AS TO FORM, City Attorney Page 85 of 146

86 CITY OF PORT HUENEME RESOLUTION NO. A RESOLUTION ESTABLISHING APPLICATION REQUIREMENTS, AND MINIMUM QUALIFICATIONS AND LOCATIONAL CRITERIA FOR MEDICINAL CANNABIS OPERATIONS ACTIVITY PURSUANT TO ARTICLES III AND ARTICLE X, CHAPTER 2, PART F OF THE PORT HUENEME MUNICIPAL CODE THE CITY COUNCIL RESOLVES AS FOLLOWS: SECTION 1: The City Council finds and declares that: A. On [TBD], the City Council adopted Ordinance No. [TBD] that adds amends Article XIII, Chapter 2, Part F12 of the Port Hueneme Municipal Code ( PHMC ), entitled "Medicinal Cannabis Activity"; B. Ordinance No. [TBD] establishes the general requirements for obtaining Permit approval for operating a commercial cannabis activity within the City of Port Hueneme and allowing cultivation for personal medicinal use; C. Ordinance No. [TBD] provides that the City Council may, by resolution, establish application and qualifications requirements for persons seeking a Permit Certificate of Approval for a Medicinal Cannabis Activity; and D. PHMC Section C. allows for interpretive judgements as to the appropriate zones within which unspecified uses may be permitted based upon comparable uses and specified purposes of corresponding districts; E. Medicinal Cannabis Activity (as such term is defined in Ordinance No. [TBD]) is not expressly listed among the uses permitted within any of the zone districts of the City; and D.F. This Resolution is adopted pursuant to Ordinance No. [TBD] and PHMC Section C for the purpose of establishing the minimum qualifications requirements, and application requirements procedures and locational criteria for persons seeking to obtain a Permitapproval of a Medicinal Cannabis Activity. SECTION 2: Under the provisions of PHMC Section C., the City Council finds and declares that: A. Commercial cannabis activity (as a conditional use) is most comparable to: (i) establishments for the sale of alcoholic beverages within the C-1 (General Commercial) Zone; and (ii) laboratory, research and manufacturing uses not otherwise specified within the M-1 (Light Page 86 of 146

87 Manufacturing) Zone; B. As a comparable conditional use within the C-1 (General Commercial) Zone, commercial cannabis activity is likewise allowed within the R-4 (Mixed Use Residential) Zone by operation of PHMC Section A. C. Personal cultivation of cannabis for medicinal purposes (as a permitted use) is: (i) most closely associated with detached single family properties with outdoor space suitable for growing and harvesting; and (ii) is comparable to private greenhouses, gardens and trees specified in PHMC Section B.; D. Based on the foregoing, it is hereby determined as follows: a. Commercial cannabis activity may be allowed as a conditional use within the R-4, C-1 and M-1 Zones subject to, and contingent upon, issuance of a Development Permit by operation of PHMC Section A.2.; b. Personal cultivation of cannabis for medicinal purposes may be allowed as a permitted use within the R-1 (Single Family) Zone subject to, and contingent upon, issuance of a Ministerial Permit by operation of PHMC Section 10354; and E. Except or unless the terminology used herein conflicts with the PHMC or requires a different meaning within the context of Medicinal Cannabis Activity, the terms and definitions contained in Ordinance No. [TBD] shall govern. Otherwise, the provisions of PHMC Section C. shall be utilized to reconcile any such vagaries or conflicts. SECTION 23: Form and Content of Application. This Section of the Resolution is adopted pursuant to, and by the authority of, Ordinance No. [TBD]. In addition to the general application requirements set forth in PHMC Sections (Conditional Uses) and (Ministerial Permits), applications for a PermitCertificate of Approval under Chapter 12, Article III of the PHMC must include the following: A. Application Filing. Each application must be: (i) filed on forms prescribed by the City; (ii) submitted concurrently with permit applications for required Zoning Clearance under Article X of this code; and (iii) shall include the following basic information and certifications. 1. Every application must be signed by the commercial proprietor and/or residential occupant (as the case may be), under penalty of perjury, along with the property owner of record; Page 87 of 146

88 2. The name, mailing address, and contact information for the person filing the application, along with the name, address and contact information for the business/individual for which the Permit is sought; and Evidence of site control by means of ownership, lease or letter of intent from the property owner (with name, address, contact information, and signature of the property owner on the application). B. Conditional UsesCommercial Cannabis Activity. Every Each application entailing a commercial cannabis activity, as such term is defined in Ordinance No. [TBD], shall require: (i) a Conditional Use Permit issued under the terms and conditions set forth in PHMC Section 10352; and (ii) a Development Agreement approved under the authority of Section et.seq, of the California Government Code. Each application for Conditional Use and Development Agreement shall be accompanied with the following information and documents: 1. Physical Plan. A graphic depiction of the proposed business location including site plan, floor plan and proposed improvements of sufficient detail to clearly communicate the realm, character and physical attributes of the proposed operations. The physical plan shall also include a map, of measurable scale, to depict the proposed business location relative to: (i) the distance to schools within the vicinity of the site; and (ii) the type of land uses within 1,000 feet of the site. 2. Qualifications Statement. A detailed resume of each person having an ownership interest in the proposed business including all training, certifications, education, licenses and all relevant credentials demonstrating a working knowledge of federal, state and local laws, regulations and guidelines governing medicinal cannabis. The resume shall also list all relevant business experience including the location and duration of other comparable facilities operated by the owner. 3. Business Operations. A business plan consisting of: (i) a narrative outlining the scope of physical improvements and timing of occupancy; (ii) hours of operation, signage and advertising; (iii) number and classification of all employees; (iv) number and location of off-street parking required to accommodate employees, customers and deliveries; (v) availability of off-street parking and impact on shared arrangements; and (vi) staging, frequency and scheduling of deliveries to and from the site. 4. Safety Precautions. A detailed description of fire prevention, suppression, HVAC and alarm systems that includes an assessment of fire safety by a qualified f ire prevention/suppression consultant. The analysis and associated recommendations shall consider all possible fire hazards, storage/handling of hazardous materials, and inhalation issues/threats. The assessment shall provide an evaluation Page 88 of 146

89 of all potential risks along with recommendations to affirmatively further public health, safety and welfare. 5. Security Measures. A narrative and detailed schematic of overall security for the proposed business including, without limitation, measures for securing ingress and egress to the premises, protecting the building perimeter (including patrolling for vagrancy and loitering), safeguarding products and cash maintained onsite, use of cameras and video equipment to monitor activities and number/credentials of security personnel to be employed. 6. Applicant Credentials. A criminal history background report for each person having an ownership interest in the proposed business that demonstrates, to the reasonable satisfaction of the Chief of Police, that such individuals do not pose a threat to public health, safety or welfare by virtue of their involvement in the proposed business. Each person who is employed in the proposed business shall also submit to a criminal background investigation for review and approval by the Chief of Police as a condition of employment. 7. Regulatory Compliance. A detailed explanation as to: (i) how medical cannabis will be tracked and monitored to prevent diversion in compliance with applicable federal, state and local laws; (ii) how transactions will be recorded, monitored and audited to assure that all purchases and sales are fully documented; (iii) how cash will be managed and secured; and (iv) measures to assure that the City will receive the appropriate amount of taxes and license fees that apply to the proposed business. 8. Product Handling. A detailed description of all products to be produced, processed, packaged and sold as part of the proposed business. The description shall indicate how products will be packaged and displayed for sale, disclosures as to strength and content, quality control measures including laboratory testing, consultation with customers as to products best suited for their particular medical circumstance, and safeguards as the type and amount of product that can be sold to a specific customer. 9. Neighborhood Compatibility. A narrative describing how the proposed business will be managed and operated so as to avoid becoming a nuisance or having impact on its neighbors and the surrounding community including, but not limited to: (i) compliance with the performance standards set forth in PHMC Section 10227; (ii) prevention of vagrancy, loitering and disruptive behavior; and (iii) enforcement of the terms and conditions of Permit approval. 9. Community Benefits. A detailed description of benefits that the proposed business would provide to the local community such as Page 89 of 146

90 employment of local residents, voluntary contributions to civic organizations, sponsorship of community events, revenue enhancement for the City, "green" business practices relating to energy usage, water conservation and waste management, serving a need not presently provided, and similar such opportunities. 10. Financial Consideration. A contractual pledge of revenue to: (i) offset the cost of application processing and permit renewal; (ii) reimburse the City for recurring costs of monitoring, auditing and enforcement; (iii) augment general revenues of the City through business license fees specific to commercial cannabis activities that are not currently recognized under the PHMC; and (iv) indemnify the City and pay all costs resulting from any and all legal challenges associated with issuance of a Conditional Use Development Permit and/or approval of a Development Agreement. 11. Business Acumen. A detailed description of overall financial wherewithal and business acumen to establish, conduct and sustain the proposed operations including: (i) working capital to underwrite property improvements and recurring costs; (ii) experience in the successful development, marketing, and maintenance of comparable businesses; and (iii) a five-year financial proforma evidencing financial viability. 12. Development Agreement. A proposed Development Agreement, substantially in the form provided by the City, that incorporates, at a minimum: (i) the Financial Considerations specified in Section 3, Paragraph B.10 of this Resolution; (ii) interconnection of the Zoning Clearance and Development Agreement with provisions for mutual termination and/or survivability of covenants in the event of violation, invalidation or revocation of either entitlement; and (iii) indemnification of the City and all officials thereof from actions by third parties including, but not limited to, enforcement of conflicting State and Federal laws. C. Private Cultivation. Each application entailing private cultivation for personal medicinal purposes, as such term is defined in Ordinance No. [TBD],Private cultivation for personal medicinal purposes shall require a Ministerial Permit under the terms and conditions set forth in PHMC Section Each application for a Ministerial Permit shall be accompanied with the following information and documents: 1. Physical Plan. A graphic depiction of where the cultivation activities are proposed including site plan, floor plan and proposed improvements of sufficient detail to clearly communicate the realm, character and physical attributes of the proposed operations. The physical plan shall also include a map, of measurable scale, to depict the proposed location relative to: (i) the distance to schools within the vicinity of the site; and (ii) the type of land uses within 1,000 feet of the Page 90 of 146

91 site. 2. Qualifications Statement. A qualifications statement consisting of: (i) a title report (or equivalent) evidencing that the applicant is the legal owner of record and current occupant of the property for which private cultivation is proposed; (ii) criminal history background report for the applicant that demonstrates, to the reasonable satisfaction of the Chief of Police, that the applicant does not pose a threat to public health, safety or welfare by virtue of the proposed cultivation; and (iii) documentation that validates the applicant s legal entitlement to grow and consume cannabis for medicinal purposes. D. Confidentiality. At the discretion of the City Manager and Chief of Police, and with consent of the City Attorney, application material may be withheld from public review in the event that such disclosure could: (i) compromise public safety by virtue of divulging information concerning security measures, surveillance procedures or business operations of a highly sensitive nature; or (ii) entail proprietary information which could advantage competitors to the financial or business determent of the applicant. SECTION 34: Minimum Qualifications. This Section of the Resolution is adopted pursuant to, and by the authority of, Ordinance No. [TBD]. In addition to all other requirements of applicable law including, without limitation, PHMC Article X, applicants for a Permit must meet the following minimum qualifications: A. Application Screening. An application filed under this Section for a Certificate of Approval shall be evaluated for completeness in accordance with the provisions of PHMC Section and 10354, as applicable. An application shall only be accepted upon a favorable determination that such application contains all of the materials specified in PHMC Sections and along with the information and documents specified in Section 3 of this Resolution. B. Project Evaluation. Upon a determination of completeness and acceptance of an application under Article III, Chapter 12 of the PHMC, the proposal shall be evaluated within the time and manner specified in PHMC Section and 10354, as applicable. A Certificate of Approval shall only be issued upon: (i) obtaining a Zoning Clearance; and (ii) a favorable ruling by the decision-making authority that the application, considering the whole of the record and proposed conditions of approval, meet the following standards. 1. Conditional Uses. The applicant, owners and operators: (i) possess the required licenses, certifications and authorities to conduct commercial cannabis operations; (ii) are of good character, honesty, and integrity, whose background, reputation and associations will not result in adverse consequences; (iii) have a successful track record in Page 91 of 146

92 operating comparable cannabis related businesses; (iv) evidence sufficient financial capacity and operational wherewithal; and (v) demonstrate that the use or uses proposed will not be injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated. 2. Ministerial Permit. The applicant: (i) possess the required licenses, certifications and authorities to cultivate cannabis for personal medicinal use; and (ii) is of good character, honesty, and integrity, whose background, reputation and associations will not result in adverse consequences. C. Decision Maker. Decision making authority for purposes of Section 4.B. of this Resolution shall be vested with the City Manager, or designee, with rights of appeal to the City Council as specified in PHMC Section [TBD]. SECTION 5: Environmental Review. This Resolution is exempt from additional review under the California Environmental Quality Act (California Public Resources Code 21000, et seq., CEQA ) and CEQA regulations (14 California Code of Regulations 15000, et seq.). A. On the basis of evidence provided, and for the reasons set forth in Section 3, Paragraphs B and C, of Ordinance No. [TBD] will not adversely affect adjoining property as to value or precedent, and will not be detrimental to the area. B. The Resolution does not authorize any new construction or use; rather, it merely prescribes a process that requires the vetting of environmental, land use and operational issues in connection with each permit application. As such, the Resolution is not a project under CEQA because: (1) it establishes "general policy and procedure making" (CEQA Guidelines 15378(b)(2); and (2) it constitutes "organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment (CEQA Guidelines 15378(b)(5)). C. The Resolution is self-mitigating insofar as it provides the means for avoiding environmental impacts, if any are identified, as part of each discretionary permit application. As stipulated in PHMC Section 10352C(7), each conditional use application is subject to separate environmental review under CEQA. Furthermore, as stipulated in PHMC Sections and 10542, conditional uses within the R-4, C-1 and M-1 zones may only be allowed so long as they will not be injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated. D. Issuance of ministerial permits for personal, non-commercial cultivation is Page 92 of 146

93 categorically exempt as a Class 1 or Class 5 project in so far, at best, the activities that are authorized would constitute a minor alteration of existing public structures involving no expansion of use, or a minor alteration in land use limitations (see 14 CCR 15301, 15305). SECTION 46: Delegation of Authority. While this Resolution establishes the minimum requirements and qualifications for persons seeking to obtain a PermitCertificate of Approval, the City Manager, or designee, is authorized to promulgate administrative policies and procedures ("AP&P") that implement PHMC Article X III and, specifically, such additional measures as may be necessary for obtaining a PermitCertificate of Approval. Nothing in such AP&P can substantively alter this Resolution; the AP&P must be reconciled with the intent of PHMC Article X III and this Resolution. SECTION 57: The Mayor, or presiding officer, is authorized to sign this Resolution signifying its adoption by the City Council of the City of Port Hueneme and the City Clerk, or her duly appointed deputy, may attest thereto. SECTION 68: This Resolution will become effective immediately upon effectuation of Ordinance No. [TBD] and will remain effective unless repealed or superseded. PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF PORT HUENEME ON THIS DAY OF, ATTEST: MAYOR APPROVED AS TO FORM: Page 93 of 146

94 ATTACHMENT NO. 2 SECTION 7: Environmental Review. This Ordinance is exempt from additional review under the California Environmental Quality Act (California Public Resources Code 21000, et seq., CEQA ) and CEQA regulations (14 California Code of Regulations 15000, et seq.) because it does not involve any commitment to a specific project which could result in a potentially significant physical impact on the environment and establishes rules and procedures to implement an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. Accordingly, this Ordinance does not constitute a project that requires environmental review (see specifically 14 CCR 15378(b)(2, 5)). Even if the Ordinance were to qualify as a project, it would be categorically exempt as a Class 1 or Class 5 project since, at best, it would constitute a minor alteration of existing public structures involving no expansion of use, or a minor alteration in land use limitations (see 14 CCR 15301, 15305). The City will conduct environmental review of each individual project affected by this Ordinance. a. On the basis of evidence provided, and for the reasons set forth in Section 3, Paragraphs B and C, the Ordinance will not adversely affect adjoining property as to value or precedent, and will not be detrimental to the area. b. The Ordinance does not authorize any new construction or use; rather, it merely prescribes a process that requires the vetting of environmental, land use and operational issues in connection with each permit application. As such, the Ordinance is not a project under CEQA because: (1) it establishes "general policy and procedure making" (CEQA Guidelines 15378(b)(2); and (2) it constitutes "organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment (CEQA Guidelines 15378(b)(5)). c. The Implementing Resolution is self-mitigating insofar as it provides the means for avoiding environmental impacts, if any are identified, as part of each discretionary permit application. As stipulated in PHMC Section 10352C(7), each conditional use application is subject to separate environmental review under CEQA. Furthermore, as stipulated in PHMC Sections and 10542, conditional uses within the C-1 and M-1 ones may only be allowed so long as they will not be injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated. d. Issuance of ministerial permits for personal, non-commercial cultivation is Even if the Ordinance were to qalify as a project, it would be categorically exempt as a Class 1 or Class 5 projectsince in so far, at best, itt activities that are authorized would constitute a minor alteration of existing public structures involving no expansion of use, or a minor alteration in land use limitations (see 14 CCR 15301, 15305). The City will conduct environmental review of each individual project affected by this Ordinance. Page 94 of 146

95 SECTION 11: The City Clerk and Director of Community Development are directed as follows: a. The City Clerk shall is directed to certify the passage and adoption of this Ordinance, cause it to be entered into the city of Port Hueneme s book of original ordinances, make a note of the passage and adoption in the records of this meeting, and, within fifteen days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. b. The Director of Community Development file a Notice of Exemption upon adoption of this Ordinance under the provisions of CEQA Guidelines Sections (d) and 15062, thereby commencing a 35-day challenge period should any interested party take exception to the City's determination set forth in Section 7 hereof. Page 95 of 146

96 ATTACHMENT NO. 3 SECTION 2: Authority. This Ordinance is adopted pursuant to the authority granted by the California Constitution and State law, including, without limitation, Article XI, Section 7 of the California Constitution; the Compassionate Use Act; the Medical Marijuana Program Act; the Medical Marijuana Regulation and Safety Act; and the Control, Regulate and Tax Adult Use of Marijuana Act. The city manager is authorized to administer this Ordinance and to promulgate such administrative policies and procedures that may be required to implement this Ordinance. A. California Government Code Title 7, Division 1, Chapter 4, Article 2.5 expressly provides for the adoption of Development Agreements as a means by which to reduce and reconcile ambiguities in local land use regulations so as to strengthen the public planning process, encourage private participation, and reduce the economic costs of development. B. The unresolved conflicts between State and Federal law in regulating medicinal marijuana (along with impending implementation of Proposition 64) complicates entitlement permitting and creates uncertainties as to how local governments should proceed in processing applications while acknowledging the legal and administrative quagmire that exists at present. C. Based on applicable provisions of the California Government Code, this Ordinance embodies use of a Development Agreement, in addition to local land use authority, by which to regulate cannabis businesses while protecting the City and its residents against the competing interests and potential (conflicting) enforcement of State and Federal law. D. In consideration of the foregoing, and as a complimentary measure to the City s customary land use police powers, this Ordinance requires a Development Agreement for all commercial cannabis activities by which to establish financial parameters and indemnifications that are not presently specified under the Port Hueneme Municipal Code. E. Entering into a Development Agreement is a voluntary act on the part of both the City and each applicant. Financial remuneration and hold-harmless commitments acquired by Development Agreement are expressly linked to, and serve as consideration for, allowing medicinal cannabis activities in the face of uncertain regulatory authorities. Page 96 of 146

97 5/17/17 version redlined against version reviewed by Council 4/25/17: ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PORT HUENEME AMENDING ARTICLESARTICLE III AND REPEALING PART F OF CHAPTER 2 OF ARTICLE X OF THE MUNICIPAL CODE TO IMPLEMENT THE COMPASSIONATE USE ACT OF 1996 AND OTHER STATE OF CALIFORNIA LAWS BY ALLOWING MEDICINAL CANNABIS FACILITIES WITHIN THE CITY SUBJECT TO REGULATORY PARAMETERS THAT PROTECT PUBLIC HEALTH, SAFETY AND WELFARE. The City Council of the City of Port Hueneme does ordain as follows: SECTION 1: The City Council finds and determines as follows: A. On November 5, 1996, the voters of the State of California approved Proposition 215, codified as Health and Safety Code Section , et seq., entitled the Compassionate Use Act of 1996 ( CUA ). The CUA exempts qualified patients and their primary caregivers from criminal liability under state law for the possession and cultivation of marijuana for personal medical use. B. The intent of the CUA is to enable persons in the State of California who are in need of marijuana for medicinal purposes to obtain it and use it under limited, specified circumstances. C. Health and Safety Code Section , et seq., ( Medical Marijuana Program Act, or MMPA ) clarifies the scope of CUA and allows cities and other governing bodies to adopt and enforce rules and regulations consistent with the MMPA. The MMPA created a state-approved voluntary medical marijuana identification card program and provided for certain additional immunities from state marijuana laws. D. The Federal Controlled Substances Act, 21 U.S.C. 801, et seq., classifies marijuana as a Schedule 1 Drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and that has not been accepted as safe for use under medical supervision. The Federal Controlled Substances Act makes it unlawful under federal law for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, marijuana. The Federal Controlled Substances Act contains no exemption for medical purposes. Page 97 of 146

98 E. In 2015, the Medical Marijuana Regulation and Safety Act ( MMRSA ) became effective. MMRSA establishes a State of California licensing scheme for commercial medical marijuana uses while protecting local control by requiring that all such businesses must have a local license or permit to operate in addition to a State license. MMRSA allows a city to completely prohibit commercial medical marijuana activities. F. The limited immunity from specified state marijuana laws provided by the Compassionate Use Act and Medical Marijuana ProgramCUA and MMPA does not confer a land use right or the right to create or maintain a public nuisance. G. In City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, the California Supreme Court held that [n]othing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land Additionally, in Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, the Court of Appeal held that there is no right and certainly no constitutional right to cultivate medical marijuana The Court in Maral affirmed the ability of a local governmental entity to prohibit the cultivation of marijuana under its land use authority. H. A statewide initiative entitled the Control, Regulate and Tax Adult Use of Marijuana Act ( AUMA ) was approved by voters on the November 2016 ballot. AUMA decriminalizeddecriminalizes (under California law), controls and regulates the cultivation, processing, manufacture, distribution, testing and sale of nonmedical marijuana, including marijuana products, for use by adults 21 years of age or older. AUMA also taxes the commercial growth and retail sale of marijuana. It does not, and cannot, affect federal regulations as to marijuana or its derivatives. I. AUMA expressly preserves local control over the regulation of marijuanarelated businesses and marijuana-related land uses (Business & Professions Code 26200, et seq.) J. California Government Code Title 7, Division 1, Chapter 4, Article 2.5 expressly provides for the adoption of Development Agreements as a means by which to reduce and reconcile ambiguities in local land use regulations so as to strengthen the public planning process, encourage private participation, and reduce the economic costs of development. K. The unresolved conflicts between State and Federal law in regulating medicinal marijuana (along with impending implementation of Proposition 64) complicates entitlement permitting and creates uncertainties as to how Page 98 of 146

99 local governments should proceed in processing applications while acknowledging the legal and administrative quagmire that exists at present. L. Based on applicable provisions of the California Government Code, this Ordinance embodies use of a Development Agreement, in addition to local land use authority, by which to regulate cannabis businesses while protecting the City and its residents against the competing interests and potential (conflicting) enforcement of State and Federal law. M. In consideration of the foregoing, and as a complimentary measure to the City s customary land use police powers, this Ordinance requires a Development Agreement for all commercial cannabis activities by which to establish financial parameters and indemnifications that are not presently specified under the Port Hueneme Municipal Code. N. Entering into a Development Agreement is a voluntary act on the part of both the City and each applicant. Financial remuneration and holdharmless commitments acquired by Development Agreement are expressly linked to, and serve as consideration for, allowing medicinal cannabis activities in the face of uncertain regulatory authorities. SECTION 2: Authority. This Ordinance is adopted pursuant to the authority granted by the California Constitution and State law, including, without limitation, Article XI, Section 7 of the California Constitution; the Compassionate Use Act; the Medical Marijuana Program Act; the Medical Marijuana Regulation and Safety Act; and the Control, Regulate and Tax Adult Use of Marijuana Act.CUA, MMPA, MMRSA and AUMA. The city manager is authorized to administer this Ordinance and to promulgate such administrative policies and procedures that may be required to implement this Ordinance. SECTION 3: Findings. The City Council finds as follows: A. This Ordinance will not adversely affect adjoining property as to value or precedent, and will not be detrimental to the area. Since 1996, twenty states and the District of Columbia have legalized the use, home cultivation, and, in some cases, the retail dispensing of medical marijuana. In a study published March 26, 2014 in the journal PLOS One, researchers analyzed FBI crime statistics from eleven of these states between 1990 and (Morris RG, TenEyck M, Barnes JC, Kovandzic TV (2014) The Effect of Medical Marijuana Laws on Crime: Evidence from State Panel Data, PLoS ONE 9(3): e doi: /journal.pone ) The states included Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Vermont and Washington. The research revealed that laws authorizing the use and dispensing of medical marijuana are not predictive of higher crimes rates and, in fact, may be related to reductions in rates of homicide and assault. Robbery and burglary rates were found to be unaffected by medical marijuana legislation, despite widely-held belief to the contrary. The results of the study were consistent Page 99 of 146

100 with other prior research suggesting that medical marijuana dispensaries may actually reduce crime in the immediate vicinity. Indeed, a U.S. National Institutes of Health study found that the psychopharmacologic effect of marijuana has been attributed to mellowing out or causing individuals to nod out, conditions that are likely to ameliorate violent tendencies. (U.S. Department of Health and Human Services, Public Health Service & National Institute on Drug Abuse, Drugs and Violence: Causes, Correlates and Consequences, NIDA Research Monograph 103, at 187 (1990)). The same study noted that marijuana use had no correlation to violent crime. (Id. at 8, 25, Table 6 and 232). Although there may be secondary impacts associated with marijuana dispensaries in the City, such as the possibility of increased crime at the facility, an increase in people loitering about the facility, and odors, the Council finds this ordinance adequately attempts to ameliorate such secondary impacts. Accordingly, there is substantial evidence to support the conclusion that this ordinance will not be detrimental to any area of the citycity or have an adverse effect on property values. To the contrary, it is anticipated that the limited authorization of marijuana-related businesses and uses contemplated by the ordinance, together with the strict regulatory controls set forth therein, will have the effect of reducing crime in the citycity and promoting public health, safety and the general welfare. B. This Ordinance promotes public health, safety and general welfare. Since 1996, twenty states and the District of Columbia have legalized the use, home cultivation, and, in some cases, the retail dispensing of medical marijuana. In a study published March 26, 2014 in the journal PLOS One, researchers analyzed FBI crime statistics from eleven of these states between 1990 and (Morris RG, TenEyck M, Barnes JC, Kovandzic TV (2014) The Effect of Medical Marijuana Laws on Crime: Evidence from State Panel Data, PLoS ONE 9(3): e doi: /journal.pone ) The states included Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Vermont and Washington. The research revealed that laws authorizing the use and dispensing of medical marijuana are not predictive of higher crimes rates and, in fact, may be related to reductions in rates of homicide and assault. Robbery and burglary rates were found to be unaffected by medical marijuana legislation, despite widely-held belief to the contrary. The results of the study were consistent with other prior research suggesting that medical marijuana dispensaries may actually reduce crime in the immediate vicinity. Indeed, a U.S. National Institutes of Health study found that the psychopharmacologic effect of marijuana has been attributed to mellowing out or causing individuals to nod out, conditions that are likely to ameliorate violent tendencies. (U.S. Department of Health and Human Services, Public Health Service & National Institute on Drug Abuse, Drugs and Violence: Causes, Correlates and Consequences, NIDA Research Monograph 103, at 187 (1990)). The same study noted that marijuana use Page 100 of 146

101 had no correlation to violent crime. (Id. at 8, 25, Table 6 and 232). Although there may be secondary impacts associated with marijuana dispensaries in the City, such as the possibility of increased crime at the facility, an increase in people loitering about the facility, or odors, the Council finds this ordinance adequately attempts to ameliorate such secondary impacts. AccordinglyBased on the studies and sources cited in the preceding paragraph, there is substantial evidence to support the conclusion that the limited authorization of marijuana-related businesses and uses contemplated by the ordinance, together with the strict regulatory controls set forth therein, will have the effect of reducing crime in the city and would, therefore, promote public health, safety and the general welfare. C. This Ordinance will not adversely affect the City s General Plan or zoning regulations set forth in the Port Hueneme Municipal Code ( PHMC ) because this Ordinance (i) regulates medicinalcommercial cannabis activity without regard to zone district or development standards that are properly relegated to Article X of the PHMC; and (ii) preserves the City s land use authority to determine the appropriate zone district and permit process by which such uses may be allowed. SECTION 4: Article III, Chapter 12 of the Port Hueneme Municipal CodePHMC is amended to read as follows: 3980 Purpose. Chapter 12 MEDICINAL CANNABIS ACTIVITY This PartChapter is adopted pursuant to the city s police powers and municipal affairs provision of the City Charter for the purpose of permitting commercial cannabis activity for medical purposes in compliance with state and local laws. Nothing in this PartChapter is intended to, nor does it, duplicate or conflict with applicable local, state, or, tobeyond the extent constitutionally permissible, federal laws General Prohibitions. A. It is unlawful for any person to engage in commercial cannabis activity without a valid Development PermitCertificate of Approval issued pursuant to this PartChapter for each location at which the activity is proposed to occur. B. Unless otherwise provided by this codechapter, it is unlawful for any person to engage in commercial cannabis activitiesactivity from other than a fixed Page 101 of 146

102 location within the city s jurisdiction for which a Certificate of Approval has been obtained and remains in effect. C. It is unlawful for any person to cause, permit, aid, abet, or conceal a violation of any provision of this PartChapter. D. Except as expressly authorized pursuant to this codechapter, commercial cannabis activities areactivity is prohibited in the City of Port Hueneme Permitted Medicinal Cannabis Activity. Subject to applicable State law and this Part, medicinalchapter, commercial cannabis activity is permitted when approved by the City in accordance with this codechapter and only if related to medical purposes. Commercial medical cannabis activitiesactivity related to recreational uses areuse is unlawful. Specifically, the following commercial cannabis activities areactivity may be allowed pursuant to a Certificate of Approval as they relateit relates to medical purposes: A. Sale; B. Except as otherwise provided for personal use, indoorindoor cultivation; C. Delivery; and D. Manufacturing.; and E. Testing Services Definitions. Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this PartChapter. Words and phrases undefined in this PartChapter have the same meaning as set forth in the Adult Use of Marijuana Act; the Compassionate Use Act; the Medical Marijuana Program Act; or the Medical Marijuana Regulation and Safety Act. Cannabis means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. Cannabis also means the separated resin, whether crude or purified, obtained from marijuana. Cannabis also means marijuana as defined by Health and Safety Code Section Cannabis does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, Page 102 of 146

103 or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this PartChapter, cannabis does not mean industrial hemp as defined by Food and Agricultural Code Section of the or Health and Safety Code Section For purposes of this Codecode, marijuana has the same meaning as cannabis and the two terms are used interchangeably. Certificate of Approval or Certificate means final approval granted for commencement of a medicinalcommercial cannabis activity under this PartChapter. Commercial cannabis activity includes cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product, except as set forth in Business and Professions Code Section 19319, related to qualifying patients and primary caregivers. Cultivation means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis. Delivery means the commercial transfer of medical cannabis or medical cannabis products from a facility, up to an amount determined by the bureau, to a primary caregiver or qualified patient as defined in Health and Safety Code Section , or a testing laboratory. Delivery also includes the use by a facility of any technology platform owned and controlled by the facility, or independently licensed under California law, which enables qualified patients or primary caregivers to arrange for or facilitate the commercial transfer by a licensed facility of medical cannabis or medical cannabis products. Director means the city manager, or designee. Employee at a facility means any person who performs work at the facility, including but not limited to any owner, supervisor, worker, volunteer or independent contractor, whether paid or unpaid, full time or part-time. Employ means to hire or otherwise retain or allow a person to act as an employee. Incidental contractors and enforcement officials (as defined in this Chapter) shall not be considered employees. Enforcement official means an employee of or contractor for the City, County, or State who is enters onto the premises of a facility for the purpose of implementing this Chapter or enforcing applicable laws. Facility and medical marijuana dispensary meanmeans a facility at which commercial cannabis activity occurs as authorized by this PartChapter including, without limitation, a medical marijuana collective, a medical marijuana dispensary, a commercial cannabis cultivation facility, a Testing Service, or a manufacturing site for cannabis products. Page 103 of 146

104 Identification card means a document issued either by a governmental agency, e.g., the California Department of Health Services, or other valid documentation that identifies a person as someone authorized to engage in the medical use of marijuana, and that identifies the person s designated primary caregiver, if any. Implementing Resolution means a resolution adopted by the City Council which prescribes the application process, eligibility requirements and/or operational parameters governing medicinalcommercial cannabis activity and/or cultivation of cannabis for personal medicinal use. Incidental contractors means independent contractors who are brought in to a facility only occasionally and solely to perform specialized services generally applicable to non-cannabis businesses (e.g. pest control specialist, plumber, electrician, copier repair tech). Medical marijuana collective means a collective, cooperative, association, dispensary or similar entity that cultivates, distributes, dispenses, stores, exchanges, processes, delivers, makes available or gives away cannabis in the city for medical purposes to qualified patients, or primary caregivers of qualified patients pursuant to Health and Safety Code or any State regulations promulgated to implement the Compassionate Use Act of Medical Marijuana Collective does not include the following uses, so long as such uses comply with this Code and other applicable law: A. A clinic licensed pursuant to Health and Safety Code 1200, et seq. B. A health care facility licensed pursuant to Health and Safety Code 1250, et seq. C. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Health and Safety Code , et seq. D. A residential care facility for the elderly licensed pursuant to Health and Safety Code 1569, et seq. E. A hospice or a home health agency licensed pursuant to Health and Safety Code 1725, et seq. Medical cannabis, medical cannabis product, or cannabis product has the same meaning as set forth in Business & Professions Code (ag), as the same may be amended from time to time. Operations Plan means an operating plan approved by the police chief, that implements the standard requirements of this PartChapter along with such additional, reasonable, criteria needed to protect public health and safety as Page 104 of 146

105 determined by the police chief, based upon the size and location of the proposed facility. Medical cannabis, medical cannabis product, or cannabis product has the same meaning as set forth in Business & Professions Code (ag), as the same may be amended from time to time. Medicinal cannabis activity means and includes commercial cannabis activity, cultivation, delivery, facility and/or medical marijuana collective as such terms are defined herein. Person with an identification card means an individual who is a qualified patient who has applied for and received a valid identification card. Personal cultivation, cultivation for personal use and similar terms mean cultivation of cannabis for medicinal consumption solely by (i) the cultivator, if the cultivator is a qualified patient; and/or (ii) by the cultivator s qualified patient, if the cultivator is the primary caregiver of the qualified patient. Police Chief means the police chief, or designee. Primary caregiver means the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person, and may include any of the following: A. In any case in which a qualified patient or person with an identification card receives medical care or supportive services, or both, from a clinic licensed pursuant to Health and Safety Code Section 1200, et seq., a health care facility licensed pursuant to Health and Safety Code Section 1250, et seq., a residential care facility for persons with chronic life-threatening illness licensed pursuant to Health and Safety Code Section , et seq., a residential care facility for the elderly licensed pursuant to Health and Safety Code Section 1569, et seq., a hospice, or a home health agency licensed pursuant to Health and Safety Code Section 1725, et seq., the owner or operator, or no more than three employees who are designated by the owner or operator, of the clinic, facility, hospice, or home health agency, if designated as a primary caregiver by that qualified patient or person with an identification card. B. An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver. Page 105 of 146

106 C. An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card. D. A primary caregiver must be at least 21 years old, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Family Code Sections 6922, 7002, 7050, or Qualified patient means a person who is entitled to the protections of Health and Safety Code Section School means any public or private school providing instruction in kindergarten; any grades 1 through 12. A school does not include any private school in which education is primarily conducted in private homes. Testing Service or Testing Services has the same meaning as testing service set forth in Health and Safety Code Zoning Clearance means authorization granted for the medicinal cannabis activity under the authority and requirements of Article X of the PHMC and Implementing Resolution State License Required; Timing. To engage in commercial cannabis activity allowed by this PartChapter, a person must obtain all of the following: A. First, a Certificate of Approval as required by this PartChapter. B. After obtaining a Certificate of Approval issued by this PartChapter, a person must thereafter obtain and maintain, all State of California commercial cannabis activity licenses required for the facility, e.g. a Type 6 (Manufacturer 1) license issued by the California Department of Consumer Affairs. Additionally, and depending on the type of medicinal cannabis activity authorized under the Certificate of Approval issued pursuant to this Part, e.g., whether delivery or manufacturing is authorized, a person must also obtain a and/or a Type 10 or 10A (Dispensary) license issued by the California Department of Consumer Affairs, etc. as enumerated in Cal. Bus. & Prof. Code section or other applicable state law. C. Background check approval from the City for each employee at the facility, pursuant to Section 3985 of this Chapter. Page 106 of 146

107 D. After obtaining a Certificate of Approval, a person must thereafter, before commencing a commercial cannabis activity, obtain a Development Permit and any other permits and approvals required for the facility under Article X or other provision of this Code. Notwithstanding any other provision of applicable law, unless extended or renewed, a Certificate of Approval will be rendered void should a person fail to obtain or, within six (6) months following issuance of the Certificate of Approval, or thereafter maintain a, the state license and other permits and approvals required by this Section Development Permit;Certificate of Approval Qualifications and Timing Set by Resolution. ; Background Check for Applicants and Employees. A. To protect public health and safety, and to further ensure that medicinalcommercial cannabis activitiesactivity permitted by this Part arechapter is in the public interest, the City Council may establish by Implementing Resolution and/or by administrative policies and procedures promulgated by the City Manager the procedures for determining the qualifications of persons allowed to apply for a Certificate of Approval by or allowed to be employed at a facility. Any such resolution. Any such city council resolution, policy or procedures may also establish the application fees and method, including timing, for objectively selecting persons that may applyevaluating and reaching a decision on applications for a Certificate of Approval pursuant to this code.chapter. B. Pursuant to California Penal Code Sections 11105(b)(11) and 13300(b)(11), which authorize city authorities to access state and local summary criminal history information for employment, licensing, or certification purposes, and authorize access to federal level criminal history information by transmitting fingerprint images and related information to the Department of Justice to be transmitted to the Federal Bureau of Investigation, every applicant for a Certificate of Approval (including owners and other representatives of the applicant) and every person to be employed at the facility must submit fingerprints and other information deemed necessary by the Chief of Police or his/her designee(s) for a background check by the Port Hueneme Police Department. A fee for the cost of the background investigation, which shall be the actual cost to the City of Port Hueneme to conduct the background investigation as it deems necessary and appropriate, including City staff time and costs, shall be paid at the time the person submits for the background check. C. In addition to any other qualifications, methods and procedures established for applicants pursuant to Paragraph A above in this Section, an applicant for a Certificate of Approval or for employment at a commercial cannabis activity shall be denied a Certificate of Approval and disqualified from employment at a facility if the background check or other information shows that the applicant: Page 107 of 146

108 1. Is dishonest or untrustworthy; 2. Has committed a felony or misdemeanor involving fraud, deceit or embezzlement; 3. Was convicted of a violent felony or crime of moral turpitude; or 4. Was convicted of unlawful activity under the Federal Controlled Substances Act, except for California medical cannabis-related offenses for which the conviction occurred after the passage of the Compassionate Use Act of Term of Certificate. Unless otherwise provided in the Certificate, a Certificate of Approval shall expire one year following its issuance. All commercial cannabis activity at the facility shall cease upon expiration of the Certificate unless and until the Certificate is renewed or a new Certificate of Approval is issued pursuant to the Implementing Resolution Limitations on City s Liability. A. To the fullest extent permitted by law, the city does not assume any liability whatsoever, with respect to approving any permitcertificate of Approval pursuant to this code or the operation of any facility approved pursuant to this code. B. As a prerequisite to issuance of a Certificate of Approval, the applicant or its legal representative must: 1. Execute an agreement indemnifying the city from any claims, judgments, awards, damages, injuries, or liabilities of any kind associated with the registrationarising out of or related to issuance of a Certificate of Approval and/or approval of a Development Permit or Ministerial Permit, or operation of the facility or the prosecution of the facility or its owners, managers, directors, officers, employees, or its qualified patients or primary caregivers for violation of federal or state laws; 2. Maintain insurance in the amounts and of the types that are acceptable to the city manager or designee; 3. Name the city as an additionally insured on all city required insurance policies; 4. Agree to pay the fees and costs of legal counsel selected by the city to defend, at its sole expense, any action against the city, its agents, officers, and/or employees related to the approval of a regulatory Page 108 of 146

109 3987 Location Criteria. permitagainst any claim described in subsection 3986(B)1 above; and 5. Agree to reimburse the city for any court costs and attorney fees that the city may be required to pay as a result of any legal challenge related to the city s approval of a permit. claim described in subsection 3986(B)1 above The cityagreements required by this subsection 3986(B) must be secured with sufficient insurance, as determined by the City Attorney, and a surety, as approved by the City Attorney, to adequately protect the city from any and all liability. The surety requirement may, at its sole be waived in the discretion, participate at its own expense in the defense of any such action, but such participation does not relieve the operator of its obligation hereunder of the director if the applicant demonstrates sufficient net worth to adequately cover the liability exposure. FACILITIES A. Facilities may only be allowed within the zone districts established under Article Xdesignated by Implementing Resolution. Each physical location of the PHMC subject to, and contingent upon, compliance with conditionsa facility requires a separate Certificate of approval that accompany the Zoning ClearanceApproval. B. It is unlawful for any portion of the parcel on which a facility is located to be within 600 minimum feet of any parcel that contains a school. C. If a facility is located above the ground floor, it must be accessible to persons with disabilities in conformance with applicable law including, without limitation, the California Building Code as adopted by this code. D. A Certificate of Approval may be renewed for a facility located on a parcel that is within 600 feet of a school if: (1) the school located to the area after the Certificate of Approval was first issued; (2) the Certificate of Approval has not lapsed for any period of time; and (3) the facility was in continuous operation. For purposes of this section, a temporary interruption of business activity due to fire, natural disaster or other force majeure is excused provided reasonable steps are taken by the permitteecertificate holder to resume business operations expeditiously. The prior, temporary suspension of a Certificate of Approval does not render a permitcertificate of Approval ineligible for renewal under this section provided the applicant otherwise qualifies for renewal. Page 109 of 146

110 3989 Community Relations. A. Each facility must provide the city manager or designee with the name, telephone number, and address of an on-site community relations or staff person or other representative to whom the city can provide notice if there are operating problems associated with the facility or refer members of the public who may have any concerns or complaints regarding the operation of the facility. Each facility must also provide the above information to all businesses and residences located within 100 feet of the facility. B. During the first year of operation of a facility authorized under this Chapter, the owner, manager, and community relations representative from each such facility must attend a monthly meeting with the city manager and/or designee to discuss costs, benefits and other community issues arising as a result of implementation of the Certificate of Approval authorized by this Chapter. After the first year of operation, the owner, manager, and community relations representative from each such facility must meet with the city manager and/or designee when and as requested by the city manager or designee Operations Plan and Standards. A Certificate of Approval issued for a facility must include, as conditions of approval, the operationsoperating standards set forth below. In addition, the Certificate of Approval must incorporate by reference an Operations Plan approved by the police chief, that implements not only the operationsoperating standards set forth in this Section, but such additional conditions that the police chief, finds reasonably necessary to implement the purpose of this PartChapter when considering the location, size and sizeother characteristics of the proposed facility. DISPENSARIES Operational Standards for Dispensaries. In addition to all other requirements of an Operations Plan required by this Chapter, dispensary facilities must include the following in an Operations Plan approved by the police chief: A. Except as otherwise provided, a facility can only be open for access to the public only between the hours of 9:00 a.m. and 9:00 p.m. B. It is unlawful for alcohol or tobacco to be sold within the facility. Further, it is unlawful for smoking, vaporization, ingestion or consumption of alcohol, tobacco or medical marijuana in any form, to occur on the premises of a facility, elsewhere on the same parcel, or in theoutdoor areas adjacent to the facility on the same parcel (e.g., parking lots, walkways)., sidewalks, streets, parks, etc.). Page 110 of 146

111 C. It is unlawful for cannabis or cannabis products or graphics depicting cannabis or cannabis products to be publicly visible from the exterior of the property. It is unlawful to store cannabis or cannabis products outside of the facility at any time. D. All cannabis and cannabis products allowed to be sold or otherwise made available at a facility must be cultivated, manufactured, and transported by licensed facilities that maintain operations in full conformance with State and local regulations including, without limitation, certification by a testing service as required by applicable law. E. It is unlawful for a physician to be located in, or on the same parcel as, a facility at any time for the purpose of evaluating patients to issue a medical marijuana prescription or card. F. Before dispensing cannabis or cannabis products to any person, the facility must verify that the person possesses a valid identification card. G. Each facility must provide the police chief, with the name and telephone number of an on-site employee or owner to whom emergency notice can be provided. The telephone number provided must be capable of accepting recorded voice messages in the event the contact person does not answer. H. Except for employees of the facility, enforcement officials and incidental contractors, it is unlawful for any person to be allowed into any area of a facility where medical cannabis products are displayed and/or being offered for sale unless that person is authorized to engage in the medical use of marijuanaa qualified patient and has a valid identification card (as defined in Section ), or is named as a designated primary caregiver on a valid identification card. It is unlawful for any person under the age of 21 to be present in any area of a facility where medical cannabis products are displayed and/or being offered for sale unless that person satisfies one of the foregoing criteria and is accompanied by a parent or legal guardian. A sign must be posted at each entrance to a sales/display area of the facility informing patrons of these restrictions. I. It is unlawful for any person under age 21 to be present in any lobby or reception area of a facility unless that person is a qualified patient or primary caregiver and is accompanied by a parent or legal guardian. J. It is unlawful for any person to employ any other person at a facility whounless: (i) the person is not at least 21 years of age; and (ii) the person has passed any background check and employee registration process specified by Implementing Resolution. Page 111 of 146

112 K. Each entrance to a facility must be posted with a conspicuous notice stating that smoking, vaping, ingesting, or otherwise consuming cannabis on the premises or in the areas adjacent to the facility is prohibited. L. Dispensaries can only dispense medical cannabis or cannabis products to a person with an identification card, as defined in Section M. Entrances into any area of a facility where medical cannabis products are displayed and/or being offered for sale must be locked at all times with entry strictly controlled. A buzz-in electronic/mechanical entry system must be utilized to limit access to such areas and to separate them from the outside and/or any adjacent reception/lobby area. The specifics of such entry system must be set forth in the operations plan. N. Uniformed security personnel must be employed to monitor all entrances and exits of the facility and to serve as a visual deterrent to unlawful activities during all hours of operation. Every security guard employed by or provided by the facility must be currently licensed by the California Bureau of Security & Investigative Services and in possession of a valid guard card. The number of such security personnel must be set forth in the operations plan. O. All restroom facilities serving a facility must remain locked and under the control of management. P. Odor control devices and techniques must be incorporated in a facility to ensure that odors from marijuana are not detectable outside of the facility or in any tenant space or area adjacent to the facility. Q. It is unlawful for any person within a facility to provide cannabis or cannabis products to any individual in a quantity not consistent with personal use. R. A facility cannot store more than $ in cash reserves overnight on the premises. except as may be otherwise provided in the operations plan incorporated as a condition of approval in the Certificate of Approval. S. All law enforcement and code enforcement personnel seeking admission to the facility for the purpose of ascertaining compliance with the standards and regulations of this code must be given unrestricted access to all areas of the premises at all times during hours of operation. Consent to such unrestricted access must be acknowledged by the permitteecertificate of Approval holder and included within the operations plan. T. All interior spaces of the facility which are open and accessible to the public (except restrooms), and all entrances and exits to and from the premises, must be monitored by 24-hour video security surveillance of at least HD Page 112 of 146

113 quality with night vision capability. The video security system must be compatible with software and hardware utilized by the city as determined by the Police Chief and set forth in the operations plan. Surveillance video must be recorded to a device that is securely located on the premises and all footage must be maintained for a minimum of 45 days. The video surveillance system specifications must be set forth in the operations plan before the city issues a certificate of occupancy for the facility. U. A facility must have a professionally installed, maintained, and monitored alarm system as approved through the operations plan. V. A facility must maintain a valid business license as required by this code. W. All food products, food storage facilities, food-related utensils, equipment and materials must be approved, used, managed and handled in accordance with the provisions of the California Retail Food Code (Health & Safety Code et seq.). All food products must be protected from contamination at all times, and all food handlers must be clean, in good health, and free from communicable diseases. The Ventura County Department of Environmental Health may inspect the facility at any time during business hours to ensure compliance with this Section. X. Except as otherwise provided by state law, state or city regulation or condition of approval, baked cannabis products (e.g., brownies, bars, cookies, cakes), tinctures, and other non-refrigerated items may be sold at a facility. Y. As part of the operations plan, permittees must execute an agreement in a form approved by the City Attorney that defends and indemnifies the City of Port Hueneme, along with its officials, officers, and employees, from any claim or liability arising from the city approving a Certificate of Approval or allowing the operation of a facility. Such agreement must be secured with sufficient insurance, as determined by the City Attorney, and a surety, as approved by the City Attorney, to adequately protect the city from any and all liability. Z.Y. A Certificate of Approval for a facility is subject to all of the regulations and operational standards set forth in this section in addition to the conditions stated in the permitcertificate of Approval itself Community Relations. A. Each facility must provide the city manager or designee with the name, telephone number, and address of an on-site community relations or staff person or other representative to whom the city can provide notice if there are operating problems associated with the facility or refer members Page 113 of 146

114 of the public who may have any concerns or complaints regarding the operation of the facility. Each facility must also provide the above information to all businesses and residences located within 100 feet of the facility. B. During the first year of operation of a facility authorized under this Part, the owner, manager, and community relations representative from each such facility must attend a monthly meeting with the city manager and/or designee to discuss costs, benefits and other community issues arising as a result of implementation of the permits authorized by this code. After the first year of operation, the owner, manager, and community relations representative from each such facility must meet with the city manager and/or designee when and as requested by the city manager or designee. CULTIVATION 3990 Outdoor Cultivation Prohibited; Exception. Except for personal medicinal use, as provided in Sections 3992 and 3993 below, outdoor cultivation of cannabis is prohibited in all areas of the city Operational Standards for Cultivation. In addition to all other requirements of an Operations Plan required by this PartChapter, facilities engaged in indoor cultivation must include the following in an Operations Plan approved by the police chief: A. The facility can have only one contiguous cultivation area. B. It is unlawful to use flammable or explosive substances in the cultivation of cannabis. C. Facilities engaged in cultivation must follow all pesticide use requirements of local, state and federal law. D. The Operations Plan must include a detailed electrical and plumbing plan, along with projections for water usage. E. All law enforcement personnel seeking admission to the cultivation site for the purpose of ascertaining compliance with the standards and regulations of this code must be given unrestricted access to all areas of the premises at all times during hours of operation. Consent to such unrestricted access must be acknowledged by the permitteeapplicant and included within the Operations Plan. F. It is unlawful for any person under the age of 21 to be present within the area where the cultivation of cannabis is occurring. A sign must be posted Page 114 of 146

115 at each entrance to a cultivation facility informing visitors of these restrictions. G. All cultivation activity must be conducted in compliance with all applicable state and local water conservation laws, ordinances, and regulations. H. Each cannabis cultivation facility must provide the police chief with the name and telephone number of an on-site employee or owner to whom emergency notice can be provided. The telephone number provided must be capable of accepting recorded voice messages in the event the contact person does not answer. I. It is unlawful for any person to employ another person under the age of 21 at a cannabis cultivation facility. J.I. K.J. L.K. M.L. Entrances into any area of a cannabis cultivation facility where cannabis is grown or kept must be locked at all times with entry strictly controlled. The specifics of such entry system must be set forth in the Operations Plan. Odor control devices and techniques must be incorporated in a cannabis cultivation facility to ensure that odors from cannabis are not detectable outside of the facility or in any tenant space or area adjacent to the facility. A cannabis cultivation facility must have a professionally installed, maintained, and monitored alarm system as approved through the Operations Plan. Cannabis cultivation facilities cannot be open to the public, though the facility may dispense cannabis in accordance with a Development PermitCertificate of Approval. N.M. A cannabis cultivation facility must be equipped with an automated fire suppression system to the satisfaction of the Building Official. O.N. ItExcept as expressly approved as part of the Operations Plan and incorporated in a Certificate of Approval, it is unlawful for any cannabis cultivation facility to use, employ, or maintain any equipment, system, material or apparatus for the purpose of increasing the ambient carbon dioxide levels within any grow area. O. It is unlawful to cultivate cannabis within 600 feet of any other parcel containing a school. P. It is unlawful for cannabis or cannabis products or graphics depicting cannabis or cannabis products to be publicly visible from the exterior of the Page 115 of 146

116 property. It is unlawful to store cannabis or cannabis products outside of the facility at any time. Q. All interior spaces of the facility which are open and accessible to the public (except restrooms), and all entrances and exits to and from the premises, must be monitored by 24-hour video security surveillance of at least HD quality with night vision capability. The video security system must be compatible with software and hardware utilized by the city as determined by the Police Chief and set forth in the operations plan. Surveillance video must be recorded to a device that is securely located on the premises and all footage must be maintained for a minimum of 45 days. The video surveillance system specifications must be set forth in the operations plan before the city issues a certificate of occupancy for the facility. R. A facility must maintain a valid business license as required by this code. S. A Certificate of Approval for a facility is subject to all of the regulations and operational standards set forth in this section in addition to the conditions stated in the Certificate of Approval itself Personal Cultivation; Standards and Regulations. Outdoor cultivation of cannabis for personal use in accordance with State law may only be permitted as regulated under the provisions of Article XSection 3993 of this codechapter Personal Cultivation for Medicinal Use; Development and Operational Standards. A. Not more than six cannabis plants of any size may be cultivated on any parcel regardless of the number of qualified patients or caregivers residing on the property. B. Cultivation cannot exceed 75 square feet in cumulative area. C. All outdoor cannabis cultivation must be fully enclosed by an opaque, wooden fence six feet in height. The fence must be at least ten feet from any structure on the property and be adequately secure to prevent unauthorized entry and theft. The police chief, will determine the level of security necessary. D. It is unlawful to cultivate cannabis within 600 feet of any other parcel containing a school. Page 116 of 146

117 E. No lighting, heaters, fans, generators or other mechanical equipment that may cause a nuisance to neighbors may be used in connection with the cultivation of cannabis. F. It is unlawful to cultivate cannabis in the front yard area of any parcel. G. It is unlawful to cultivate cannabis within the required rear or side yard setbacks of any parcel. H. It is unlawful for there to be any audible or olfactory evidence of cannabis cultivation from any street, sidewalk, public right-of-way, or adjacent property, or any visual evidence of cannabis cultivation when viewed from five feet above ground level from any street, sidewalk, public right-of-way, or adjacent property. I. The cultivation of medicalmedicinal cannabis is permitted for noncommercial purposes only. It is unlawful to sell, trade, barter, or engage in any other commercial exchange of cannabis or cannabis products cultivated pursuant to this section. J. The address of any dwelling on a parcel where cannabis is cultivated must be posted and plainly visible from the public right-of-way. K. Cultivation of cannabis cannot occur on any property where a parolee or probationer resides unless the parolee or probationer has received confirmation from a court of competent jurisdiction that he or she is allowed to use medical cannabis while on parole or probation pursuant to Health and Safety Code section Such confirmation must be provided to city staff or law enforcement upon request. L. Any law enforcement personnel may, after providing 24 hours notice, enter onto the property where cultivation of medical cannabis is occurring pursuant to this section for the purpose of inspecting the cultivation site and perimeter fencing. This section does not purport to authorize any law enforcement personnel to enter any dwelling located on the property. For purposes of this section, notice is sufficient if posted at the entrance to the dwelling on the property or if hand delivered to any person over the age of 18 residing on the property. M. It is unlawful for any person under the age of 21 to be present within the fenced area where the cultivation of medical cannabis is occurring unless such person is a qualified patient or a primary caregiver and he or she is in the presence of his or her parent or guardian. Page 117 of 146

118 N. All cultivation activities must be conducted in compliance with all applicable state and local water conservation laws, ordinances, and regulations. O. Nothing in this section is intended to authorize the cultivation, possession, or use of cannabis in violation of state or federal law. P. Notwithstanding any other provision of this code, or applicable law, no variances are permitted from any of the regulations in this section. Q. Prior to commencing cultivation under this Section, the cultivator shall obtain a Ministerial Permit from the City as provided by Implementing Resolution. A valid Ministerial Permit must be maintained in effect by the cultivator throughout the period of cultivation. The cultivator shall remove all cannabis plants and plant materials from the property within 24 hours following termination or expiration of the Ministerial Permit Delivery. DELIVERY A. A Certificate of Approval for a facility may authorize the mobile delivery of medical cannabis as part of and in conjunction with the operation of the facility. Deliveries by dispensaries other than those authorized by this Part are unlawful. Mobile delivery privileges may be suspended or terminated by the city manager, as set forth in this code. which are located in the City of Port Hueneme and hold a valid Certificate of Approval under this Chapter are unlawful. B. Delivery of cannabis from a facility permittedthat has obtained a Certificate of Approval pursuant to this PartChapter can only be made in a city or county that does not expressly prohibit such deliveries by ordinance. C. It is unlawful for any person under the age of 21 to be allowed to serve as a delivery driver and no person can employ a person under the age of 21 for the purpose of making mobile deliveries of any medical cannabis product. D. A facility permittedwhich has obtained a Certificate of Approval pursuant to this PartChapter may have its delivery privileges suspended or terminated by the city manager if the facility is found to have violated this PartChapter. Page 118 of 146

119 MANUFACTURING AND TESTING FACILITIES 3995 Operations Plan; Additional Requirements. In addition to any other requirements, of an Operations Plan, a Testing Service or a facility engaged in manufacturing cannabis products must include, as conditions precedent to issuance of a Certificate of Approval, an Operations Plan encompassing the elements set forth under this Partin Section Operational Standards. A. The manufacture of cannabis products and the operations of a Testing Service must be undertaken in a manner that ensures the health, safety, and welfare of the public, the employees of the cannabis business, visitors, and neighboring properties. B. All law enforcement and code enforcement personnel seeking admission to the manufacturing or testing site for the purpose of ascertaining compliance with the standards and regulations of this code must be given unrestricted access to all areas of the premises at all times during hours of operation. Consent to such unrestricted access must be acknowledged by the permitteeapplicant and included within the Operations Plan. C. It is unlawful for any person under the age of 21 to be present within the area where the manufacture or testing of cannabis products is occurring. A sign must be posted at each entrance to a manufacturing or testing facility informing visitors of these restrictions. D. All manufacturing and testing activity must be conducted in compliance with all applicable state and local water conservation laws, ordinances, and regulations. E. It is unlawful for any person to employ another person under the age of 21 at a cannabis manufacturing or testing facility. F. Entrances into any area of a cannabis manufacturing or testing facility where cannabis products are made, tested or kept must be locked at all times with entry strictly controlled. The specifics of such entry system must be set forth in the Operations Plan. G. Odor control devices and techniques must be incorporated in a cannabis manufacturing or testing facility to ensure that odors from cannabis are not detectable outside of the facility or in any tenant space or area adjacent to the facility. Page 119 of 146

120 H. A cannabis manufacturing or testing facility must have a professionally installed, maintained, and monitored alarm system as approved through the Operations Plan. I. It is unlawful for cannabis manufacturing or testing facilities to be open to the public. J. Any compressed gases used in the manufacturing or testing process shall not be stored in containers that exceed 150 pound tanks in size. Each facility shall be limited to a total of eight tanks on the property at any time. K. Cannabis manufacturing and testing facilities are limited to the following methods, equipment, solvents, gases and mediums when creating cannabis extracts: 1. Cannabis manufacturing and testing facilities may use the hydrocarbons N-butane, isobutane, propane, or heptane or other solvents or gases exhibiting low to minimal potential human-related toxicity approved by the director. These solvents must be of at least ninety-nine percent purity and any extraction process must use them in a professional grade closed loop extraction system designed to recover the solvents, work in an environment with proper ventilation, controlling all sources of ignition where a flammable atmosphere is or may be present. 2. Any extraction processes must use a professional grade closed loop CO₂ gas extraction system where every vessel is rated to a minimum of six hundred pounds per square inch. The CO₂ must be of at least ninety-nine percent purity. 3. Closed loop systems for hydrocarbon or CO₂ extraction systems must be commercially manufactured and bear a permanently affixed and visible serial number. 4. Certification from a licensed engineer must be provided to the Community Development Department for professional grade closed loop systems used by any cannabis manufacturing or mechanized testing system to certify that the system was commercially manufactured, safe for its intended use, and built to codes of recognized and generally accepted good engineering practices, such as: (i) the American Society of Mechanical Engineers (ASME); (ii) the American National Standards Institute (ANSI); (iii) Underwriters Page 120 of 146

121 Laboratories (UL); or (iv) the American Society for Testing and Materials (ASTM). 5. The certification document must contain the signature and stamp of a professional engineer and serial number of the extraction unit being certified. 6. Professional closed loop systems, other equipment used, the extraction operation, and facilities must be approved for their use by the Fire Department and meet any required fire, safety, and building code requirements specified in the California Building Reference Codes. L. Cannabis manufacturing facilities may use heat, screens, presses, steam distillation, ice water, and other methods without employing solvents or gases to create keef, hashish, bubble hash, or infused dairy butter, or oils or fats derived from natural sources, and other extracts. M. Cannabis manufacturing facilities may use food grade glycerin, ethanol, and propylene glycol solvents to create extracts. All ethanol must be removed from the extract in a manner to recapture the solvent and ensure that it is not vented into the atmosphere. N. Cannabis manufacturing facilities creating marijuana extracts must develop standard operating procedures, good manufacturing practices, and a training plan prior to producing extracts for the marketplace. Any person using solvents or gases in a closed looped system to create marijuana extracts or otherwise in a testing or manufacturing facility must be fully trained on how to use the system, have direct access to applicable material safety data sheets and handle and store the solvents and gases safely. O. Parts per million for one gram of finished extract produced in a manufacturing facility cannot exceed 500 parts per million of residual solvent or gas when quality assurance tested. P. It is unlawful for cannabis or cannabis products or graphics depicting cannabis or cannabis products to be publicly visible from the exterior of the property. It is unlawful to store cannabis or cannabis products outside of the facility at any time. Q. Each facility must provide the police chief, with the name and telephone number of an on-site employee or owner to whom emergency notice can be provided. The telephone number provided must be capable of accepting recorded voice messages in the event the contact person does not answer. R. All interior spaces of the facility which are open and accessible to the public (except restrooms), and all entrances and exits to and from the premises, Page 121 of 146

122 must be monitored by 24-hour video security surveillance of at least HD quality with night vision capability. The video security system must be compatible with software and hardware utilized by the city as determined by the Police Chief and set forth in the operations plan. Surveillance video must be recorded to a device that is securely located on the premises and all footage must be maintained for a minimum of 45 days. The video surveillance system specifications must be set forth in the operations plan before the city issues a certificate of occupancy for the facility. S. A facility must maintain a valid business license as required by this code. T. A Certificate of Approval for a facility is subject to all of the regulations and operational standards set forth in this section in addition to the conditions stated in the Certificate of Approval itself. ENFORCEMENT 3997 Enforcement of Certificates of Approval; Generally. In addition to other remedies set forth in this code, violations of this sectionchapter may be prosecuted as infractions or misdemeanors at the City Attorney s discretion and may be abated as public nuisances. The remedies provided by this section are cumulative and in addition to any other criminal or civil remedies. The remedies provided by Sections 3997 through are cumulative and in addition to any other criminal or civil remedies. For purposes of Sections 3997 through , violations of this Chapter include (i) violation of the provisions of this Chapter; (ii) violation of any Implementing Resolution; (iii) violation of any administrative policy or procedure promulgated by the director; (iv) violation of the terms and conditions of a Certificate of Approval, development agreement, indemnification agreement, operations plan, development permit, or other permit or agreement associated with a facility; and (v) violation of terms and conditions of a Ministerial Permit issued for cannabis cultivation for personal use City Attorney Enforcement Authority. In addition to any other general functions, powers, and duties given to the City Attorney by this code or California law, the City Attorney is authorized to: A. Prosecute on behalf of the people all criminal and civil cases for violations of this sectionchapter including, without limitation, administrative or judicial nuisance abatement and suits for injunctive relief; B. Prosecute all actions for the recovery of fines, penalties, forfeitures, and other money accruing to the city under this sectionchapter Administrative Suspension and Revocation. A. Suspension or Revocation. In addition to any other penalty authorized by Page 122 of 146

123 law, the director may suspend or revoke a Certificate of Approval for the following reasons: 1. Upon learning that an applicant provided false, misleading or materially incomplete information in connection with its application for a Certificate of Approval or discovering facts that require permit denial of an application for a Certificate of Approval under this sectionchapter that were not previously disclosed or reasonably discoverableby the applicant; or 2. If the permittee violates any condition imposed by this section. 2. Upon occurrence of a violation under this Chapter. B. Notice of Suspension or Revocation. If, after having determined that a person is violating this section, the If the director elects to suspend or revoke a medical cannabis cultivation Certificate of Approval, the director must serve ashall provide written notice of suspension ofor revocation onto the permittee.holder of the Certificate at the address of the facility. The notice mustshall state the basis of such violations for the suspension or revocation and provide information regarding the right to appeal. Suspension or revocation of the permit Unless the director determines there is an imminent threat to public health, safety and welfare and makes the suspension or revocation effective immediately, suspension or revocation of the Certificate of Approval shall not become effective until the time for filing an appeal has passed or, if an appeal is timely filed, until the city manager has rendered a final decision on the appeal Appeal of Notice of Suspension or Revocation. A. A notice of suspension or revocation of a Certificate of Approval may be appealed to the city manager, provided that a request for review (appeal) is filed with the office of the city manager within ten calendar days from the date on which the written notice of suspension of revocation was served onmailed to the permitteeholder of the Certificate. If a request for review is untimely, the city manager may, but is not required to, extend the time for commencing such review for good cause shown. B. A request for review must be on a form provided by the community development department and contain the following information: 1. The name, address and telephone number of the person making the request; Page 123 of 146

124 2. A description of the decision, determination or order which is the subject of the review and the date such decision, determination or order was made or issued; 3. A complete description of all grounds for making the request, together with any evidence in support of the request; and 4. Such other information as may be required by the director. C. Upon receiving a request for review, the city manager will review the request and, within ten business days of receiving the request, provide the appellant with a written notification that: 1. The director s decision is affirmed; 2. The director s decision is modified; or 3. The director s decision is reversed. D. The city manager may, but is not required to, conduct a hearing at a time, place and manner determined in the city manager s sole discretion. Should a hearing occur, the city manager may issue a decision orally at the conclusion of the hearing, but also notify the appellant and director in writing of the city manager s decision. The decision may include such terms and conditions as the city manager may determine to be in the interest of public health and safety, including revocation, suspension, or continuation of a Certificate of Approval (with or without modification to conditions of approval). E. The city manager s decision is final. There is no right of appeal to the City Council Right to Judicial Review. A final decision of the city manager may be judicially reviewed pursuant to Code of Civil Procedure Section No New PermitCertificate After Revocation. Should a medical cannabis cultivation Certificate of Approval be revoked, the former permitteeholder of the Certificate is presumptively disqualified to apply for a new permitcertificate of Approval in accordance with this sectionchapter. This presumption may be overcome upon a showing of good cause as to why a permitcertificate of Approval should be issued following a revocation. Any such showing must be made to the director s satisfaction Attorney s Fees. Where a civil action is filed, the prevailing party is entitled to reasonable attorneys fees, but is limited by the amount of attorneys fees claimed by the city. in Nuisance Abatement Action. If the court issues an order or a judgment which finds a public nuisance to exist, and orders or approves the abatement of the public Page 124 of 146

125 nuisance, or where the court validates an accounting, the court will also award the citythe city is entitled to recover its actual costs of abatement, including, without limitation, reasonable attorneys fees incurred by the city in such judicial proceeding Remedies Cumulative. The remedies provided by this sectionchapter are cumulative and in addition to any other criminal or civil remedies including, without limitation, those set forth elsewhere in this code. SECTION 6: 5: Article X, Chapter 2, Part F of the Port Hueneme Municipal Code is hereby repealed and shall have no further force or effect. SECTION 7:6: Environmental Review. This Ordinance is exempt from additional review under the California Environmental Quality Act (California Public Resources Code 21000, et seq., CEQA ) and CEQA regulations (14 California Code of Regulations 15000, et seq.) a. On the basis of evidence provided, and for the reasons set forth in Section 3, Paragraphs BA and CB, the Ordinance will not adversely affect adjoining property as to value or precedent, and will not be detrimental to the area. b. The Ordinance does not authorize any new construction or use; rather, it merely prescribes a process that requires the vetting of environmental, land use and operational issues in connection with each permit application. for a Certificate of Approval. As such, the Ordinance is not a project under CEQA because: (1) it establishes "general policy and procedure making" (CEQA Guidelines 15378(b)(2); and (2) it constitutes "organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment (CEQA Guidelines 15378(b)(5)). c. The Implementing Resolution is self-mitigating insofar as it provides the means for avoiding environmental impacts, if any are identified, as part of each discretionary permit application. for a Certificate of Approval. As stipulated in PHMC Section 10352C(7), each conditional use application is subject to separate environmental review under CEQA. Furthermore, as stipulated in PHMC Sections and 10542, conditional uses within the C-1, M-1 and M-1 onesr-4 zones may only be allowed so long as they will not be injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated. d. Issuance of ministerial permits for personal, non-commercial cultivation is categorically exempt as a Class 1 or Class 5 project in so far, at best, the activities that are authorized would constitute a minor alteration of existing public structures involving no expansion of use, or a minor alteration in land use limitations (see 14 CCR 15301, 15305). SECTION 8:7: Construction. This Ordinance must be broadly construed in order to achieve the purposes stated in this Ordinance. It is the City Council s intent that Page 125 of 146

126 the provisions of this Ordinance be interpreted or implemented by the city and others in a manner that facilitates the purposes set forth in this Ordinance. SECTION 9:8: Enforceability. Repeal of any provision of the Port Hueneme Municipal Code does not affect any penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties for any violation occurring before this Ordinance s effective date. Any such repealed part will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Ordinance. SECTION 10:9: Severability. If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable. SECTION 1110: as follows: The City Clerk and Director of Community Development are directed a. The City Clerk shall certify the passage and adoption of this Ordinance, cause it to be entered into the city of Port Hueneme s book of original ordinances, make a note of the passage and adoption in the records of this meeting, and, within fifteen days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. b. The Director of Community Development shall file a Notice of Exemption upon adoption of this Ordinance under the provisions of CEQA Guidelines Sections (d) and 15062, thereby commencing a 35-day challenge period should any interested party take exception to the City's determination set forth in Section 76 hereof. SECTION 1211: This Ordinance will take effect on the 31 st day following its final passage and adoption. PASSED AND ADOPTED this day of, ATTEST: Michelle Kostenuik, City Clerk Tom Figg, Mayor APPROVED AS TO FORM Page 126 of 146

127 Charles R. Green, City Attorney PHNE/0001-1/DOC/003-2.DOC 5/17/ law Page 127 of 146

128 Draft 5/17/17, redlined against version reviewed by Council 4/25/17: CITY OF PORT HUENEME RESOLUTION NO. A RESOLUTION ESTABLISHING APPLICATION REQUIREMENTS, MINIMUM QUALIFICATIONS AND LOCATIONAL CRITERIA FOR MEDICINAL CANNABIS ACTIVITY PURSUANT TO ARTICLES III AND X, OF THE PORT HUENEME MUNICIPAL CODE THE CITY COUNCIL RESOLVES AS FOLLOWS: SECTION 1: The City Council finds and declares that: A. On [TBD], the City Council adopted Ordinance No. [TBD] (hereinafter, the Ordinance ) that amends Article III, Chapter 12 of the Port Hueneme Municipal Code ( PHMC ), entitled "Medicinal Cannabis Activity"; B. The Ordinance No. [TBD] establishes the general requirements for obtaining approval for operating a commercial cannabis activity within the City of Port Hueneme and allowing cultivation for personal medicinal use; C. The Ordinance No. [TBD] provides that the City Council may, by resolution, establish fees and application and qualifications requirements for persons seeking a Certificate of Approval for a Medicinal Cannabis Activity; D. PHMC Section C. allows for interpretive judgementsjudgments as to the appropriate zones within which unspecified uses may be permitted based upon comparable uses and specified purposes of corresponding districts; E. MedicinalCommercial Cannabis Activity (as such term is defined in the Ordinance No. [TBD])) is not expressly listed among the uses permitted within any of the zone districts of the City; and F. This Resolution is adopted pursuant to the Ordinance No. [TBD] and PHMC Section C for the purpose of establishing fees and minimum qualification requirements, application procedures and locational criteria for persons seeking approval of a MedicinalCommercial Cannabis Activity. SECTION 2: Under the provisions of PHMC Section C., the City Council finds and declares that: Page 128 of 146

129 A. Commercial. 1. Commercial cannabis activity (as defined in the Ordinance) includes cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a conditional use)medical cannabis product; 2. The sale of medicinal cannabis is an activity most comparable to: (i) establishmentsclosely aligned with the purpose of the C-1 Zone which is for the sale of alcoholic beveragesgeneral business and commercial uses (PHMC Section 10480) including, but not limited to, Drug Store which is allowed under PHMC Section A.14 as a permitted use; 3. Cultivation of medicinal cannabis is an activity most closely aligned with Nursery which is also a permitted use within the C-1 (General Commercial) Zone; and (ii)zone (PHMC Section A.30) and defined as an area where plants are grown for transplanting, for use as stocks for budding and grafting, or for sale (Merriam- Webster Dictionary); 4. Uses of structures which are incidental or accessory to any of the uses permitted in the C-1 Zone are also allowed including possession, manufacture, processing, storing, laboratory testing, labeling, transporting and distribution which comprise the balance of commercial cannabis activity (PHMC Section A.43); 5. No use within the C-1 Zone, whether expressly permitted or as an incidental activity to the principal use, is allowable if such use or associated operations are objectionable due to noise, odor, dust, smoke, vibration, or other similar causes (PHMC Section 10484); 6. In consideration of the facts, findings and regulatory provisions of the Ordinance, the potential impact of commercial cannabis activity could result in objectionable outcomes unless special measures are imposed as conditions of approval to ensure land use compatibility; and 7. As such, and by operation of PHMC Section I., the sale of medicinal cannabis and associated incidental uses (i.e., cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution) are most appropriately classed as conditional uses within the C-1 Zone. B. Manufacturing. Page 129 of 146

130 1. Facility (as defined in the Ordinance) means a commercial cannabis activity that occurs at a specific geographic location including, without limitation: cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product; 2. Cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, and distribution (without retail sales) are activities most closely aligned with the purpose of the M-1 Zone which is for industrial uses other than those requiring direct water adjacency together with selected commercial/industrial uses (PHMC Section 10540); 1.3. The production of medicinal cannabis (encompassing those activities described in Paragraph 2 above) is most closely aligned with laboratory, research and manufacturing uses not otherwise specified as permitted uses within the M-1 (Light Manufacturing) Zone; (PHMC Section F); 4. Laboratory, research and manufacturing uses not otherwise specified as permitted uses within the M-1 Zone are allowable as conditional uses so long as such uses are not injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated (PHMC Section 10542); and 5. As such, and by operation of PHMC Section F., the production of medicinal cannabis (encompassing those activities described in Paragraph 2 above) are most appropriately classed as conditional uses within the M-1 Zone. C. Miscellaneous. 1. As a comparable conditional use within the C-1 (General Commercial) Zone, commercial cannabis activity is likewise allowed within the R-4 (Mixed Use Residential) Zone by operationconditional use under the provisions of PHMC Section A.; and 2. Personal cultivation of cannabis for medicinal purposes (as a permitted use) is: (i) most closely associated with detached single family properties with outdoor space suitable for growing and harvesting; and (ii) is comparable to private greenhouses, gardens and trees specified in PHMC Section B.;. D. Declarations. Based on the foregoing, it is hereby determined as follows: Page 130 of 146

131 1. Commercial cannabis activity may be allowed as a conditional use within the R-4, C-1 and M-1 Zones. Such use shall be subject to, and contingent upon, issuance of a Development Permit by operation of PHMC Section A.2.;. Commercial cannabis activity shall not be permitted or conditionally permitted in any other zone. 2. Personal cultivation of cannabis for medicinal purposes may be allowed as a permitted use only within the R-1 (Single Family) Zone, and in no other zone. Such use shall be subject to, and contingent upon, issuance of a Ministerial Permit by operation of PHMC Section 10354; and. 3. Except or unless the terminology used herein conflicts with the PHMC or requires a different meaning within the context of Medicinal Cannabis Activitycommercial cannabis activity, the terms and definitions contained in the Ordinance No. [TBD] shall govern. Otherwise, the provisions of PHMC Section C. shall be utilized to reconcile any such vagaries or conflicts. SECTION 3: This Section of the Resolution is adopted pursuant to, and by the authority of, the Ordinance No. [TBD].. In addition to the general application requirements set forth in PHMC Sections (Conditional Uses) and Development Permits) or (Ministerial Permits), applications, for a Certificate of Approval under Chapter 12, Article III of the PHMC for a commercial cannabis activity, and applications for a Ministerial Permit for cultivation of cannabis for personal use, must include the following: A. Application Filing. Each application must be: (i) be filed on forms prescribed by the City; (ii) submitted concurrently with permit applications for required Zoning Clearance under Article X of this code; and (iiiii) include the following basic information and certifications.: 1. Every application must be signed by the commercial proprietor and/or residential occupant (as the case may be), under penalty of perjury, along with the property owner of record; 2. The name, mailing address, and contact information for the person filing the application, along with the name, address and contact information for the business/individual for which the Certificate or Permit is sought; and Evidence of site control by means of ownership, lease or letter of intent from the property owner (with name, address, contact information, and signature of the property owner on the application). Page 131 of 146

132 B. Commercial Cannabis Activity. Each application entailing a commercial cannabis activity, as such term is defined in the Ordinance No. [TBD],, shall be accompanied with the following information and documents: 1. Physical Plan. A graphic depiction of the proposed business location including site plan, floor plan and proposed improvements of sufficient detail to clearly communicate the realm, character and physical attributes of the proposed operations. The physical plan shall also include a map, of measurable scale, to depict the proposed business location relative to: (i) the distance to schools within the vicinity1,000 feet of the site; and (ii) the type of land uses within 1,000 feet of the site. 2. Qualifications Statement. A detailed resume of each person having an ownership interest in the proposed business including all training, certifications, education, licenses and all relevant credentials demonstrating a working knowledge of federal, state and local laws, regulations and guidelines governing medicinal cannabis. The resume shall also list all relevant business experience including the location and duration of other comparable facilities operated by the owner. 3. Business Operations. A business operating plan consisting of: (i) a narrative outlining the scope of physical improvements and timing of occupancy; (ii) hours of operation, signage and advertising; (iii) number and classification of all employees; (iv) number and location of off-street parking spaces required to accommodate employees, customers and deliveries; (v) availability of off-street parking and impact on shared arrangements; and (vi) staging, frequency and scheduling of deliveries to and from the site. 4. Safety Precautions. A detailed description of fire prevention, suppression, HVAC and alarm systems that includes an assessment of fire safety by a qualified f ire prevention/suppression consultant. The analysis and associated recommendations shall consider all possible fire hazards, storage/handling of hazardous materials, and inhalation issues/threats. The assessment shall provide an evaluation of all potential risks along with recommendations to affirmatively further public health, safety and welfare. 5. Security MeasuresPlan. A narrative and detailed schematic of overall security forplan, prepared by a professionally licensed security consultant with extensive experience in the proposed businessmedicinal cannabis industry, including, without limitation, operating procedures, facility design schematics, and technological security features, measures for securing ingress and egress to the premises, protecting the building perimeter (including patrolling for vagrancy and loitering), safeguarding products and cash maintained onsite, use of cameras and video equipment to monitor activities and number/credentials of security personnel to be employed. The Page 132 of 146

133 Security Plan must be approved by the Chief of Police, and he or she may require modifications in the interests of public health, safety and welfare. 6. Applicant Credentials. A criminal history background report for each person having an ownership interest in the proposed business that demonstrates, to the reasonable satisfaction of the Chief of Police, that such individuals do not pose a threat to public health, safety or welfare by virtue of their involvement in the proposed business. Each person who is employed in the proposed business shall also submit to a criminal background investigation for review and approval by the Chief of Police as a condition of employment. 7. Regulatory Compliance. A detailed explanation as to: (i) how medical cannabis will be tracked and monitored to prevent diversion in compliance with applicable federal, state and local laws; (ii) how transactions will be recorded, monitored and audited to assure that all purchases and sales are fully documented; (iii) how cash will be managed and secured; and (iv) measures to assure that the City will receive the appropriaterequired amount of taxes and license fees that apply to the proposed business. 8. Product Handling. A detailed description of all products to be produced, processed, packaged and sold as part of the proposed business. The description shall indicate how products will be packaged and displayed for sale, disclosures as to strength and content, quality control measures including laboratory testing, consultation with customers as to products best suited for their particular medical circumstance, and safeguards as the type and amount of product that can be sold to a specific customer. 9. Neighborhood Compatibility. A narrative describing how the proposed business will be managed and operated so as to avoid becoming a nuisance or having impact on its neighbors and the surrounding community including, but not limited to: (i) compliance with the performance standards set forth in PHMC Section 10227; (ii) prevention of vagrancy, loitering and disruptive behavior; and (iii) enforcement of the terms and conditions of Permit approval. 10. Community Benefits. A detailed description of benefits that the proposed business would provide to the local community such as employment of local residents, voluntary contributions to civic organizations, sponsorship of community events, revenue enhancement for the City, "green" business practices relating to energy usage, water conservation and waste management, serving a need not presently provided, and similar such opportunities. 11. Financial Consideration. A contractual pledge of revenue to: (i) Page 133 of 146

134 offset the cost of application processing and permit renewal; (ii) reimburse the City for recurring costs of monitoring, auditing and enforcement; (iii) augment general revenues of the City through business license fees specific to commercial cannabis activities that are not currently recognized under the PHMC; and (iv) indemnify the City and pay all costs resulting from any and all legal challenges associated with approval or issuance of a Development Permit and/or approval of a, Development Agreement, and/or Certificate of Approval. Applications shall include the true and accurate financial statement of the applicant, and, at the option of the City, all those having an ownership interest in the proposed or existing business. 12. Business Acumen. A detailed description of overall financial wherewithal and business acumen to establish, conduct and sustain the proposed operations including: (i) working capital to underwrite property improvements and recurring costs; (ii) experience in the successful development, marketing, and maintenance of comparable businesses; and (iii) a five-year financial proforma evidencing financial viability. 13. Development Agreement. A proposed Development Agreement, substantially in the form provided by the City, that incorporates, at a minimum: (i) the Financial Considerations specified in Section 3, Paragraph B.1011 of this Resolution; (ii) interconnection of the Zoning Clearance and Development Agreement with provisions for mutual termination and/or survivability of covenants in the event of violation, invalidation or revocation of either entitlement; and (iii) indemnification of the City and all officials thereof from actions by third parties including, but not limited to, enforcement of conflicting State and Federal laws. C. Private Cultivation. Each application entailingfor a Ministerial Permit for outdoor private cultivation for personal medicinal purposes, as such term is defined in Ordinance No. [TBD], shall be accompanied with the following information and documents: 1. Physical Plan. A graphic depiction of where the cultivation activities are proposed including site plan, floor plan and proposed improvements of sufficient detail to clearly communicate the realm, character and physical attributes of the proposed operations. The physical plan shall also include a map, of measurable scale, to depict the proposed location relative to: (i) the distance to schools within the vicinity1,000 feet of the site; and (ii) the type of land uses within 1,000 feet of the site. 2. Qualifications Statement. A qualifications statement consisting of: (i) a title report (or equivalent) evidencing that the applicant is the legal owner of record and current occupant, where occupancy is authorized by the owner of record of the property for which private cultivation is Page 134 of 146

135 proposed; (ii) criminal history background report for the applicant that demonstrates, to the reasonable satisfaction of the Chief of Police, that the applicant does not pose a threat to public health, safety or welfare by virtue of the proposed cultivation; and (iii) documentation that validates the applicant s legal entitlement to grow and consume cannabis for medicinal purposes. D. Confidentiality. At the discretion of the City Manager and Chief of Police, and with consent of the City Attorney, application material may be withheld from public review in the event that such disclosure could: (i) compromise public safety by virtue of divulging information concerning security measures, surveillance procedures or business operations of a highly sensitive nature; or (ii) entail proprietary information which could advantage competitors to the financial or business determent of the applicant. ; or (iii) publicly identify persons and locations engaged in cultivation for personal use, which could be used to target them for burglary or theft. SECTION 4: Minimum Qualifications.Review of Applications. This Section of the Resolution is adopted pursuant to, and by the authority of, the Ordinance No. [TBD].. In addition to all other requirements of applicable law including, without limitation, PHMC Article X, applicants for a Permit must meetcertificate of Approval to operate a commercial cannabis activity will be subject to the following minimum qualifications: A. Application Screening. An application filed under this Section for a Certificate of ApprovalMinisterial Permit for personal use cultivation or a Development Permit for a commercial cannabis activity shall be evaluated for completeness in accordance with the provisions of PHMC Section and 10354, as applicable.; provided, however, that (as provided in the Ordinance) approval of a Certificate of Approval is a prerequisite for a Development Permit for a commercial cannabis activity, and consequently the Development Permit application shall not be deemed complete until the applicant has obtained a Certificate of Approval for the facility. An application shall only be accepted upon a favorable determination that such application contains all of the materials specified in PHMC Sections and along with the information and documents specified in Section 3 of this Resolution. B. Project Evaluation. of Applications. Upon a determination of completeness and acceptance ofthe application is complete, an application under Article III, Chapter 12 of the PHMC, the proposalfor a Development Permit or a Ministerial Permit shall be evaluated within the time and manner specified in PHMC Section and 10354, as applicable. A Certificate of Approval, Development Permit, or Ministerial Permit for a commercial cannabis activity or personal cultivation for medicinal use shall only be issued upon: (i) obtaining a Zoning Clearance; and (ii) a favorable ruling by the decision-making authority maker that the application, considering the whole of the record and proposed conditions of approval, meet all applicable requirements of the PHMC, the Page 135 of 146

136 Ordinance, this Resolution, any AP&P promulgated pursuant to Section 6 below, and the following standards.: 1. Conditional Uses. The1. Certificate of Approval or Development Permit. For a Certificate of Approval or Development Permit, that the applicant, owners and operators: (i) possess the required licenses, certifications and authorities to conduct the proposed commercial cannabis operationsactivity; (ii) are of good character, honesty, and integrity, whose background, reputation and associations willdo not present a substantial risk that the activity will result in adverse consequences; (iii) have a successful track record in operating comparable cannabis related businesses; (iv) evidence sufficient financial capacity and operational wherewithal; and (v) demonstrate that the use or uses proposed will not be injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated. 2. Ministerial Permit. TheFor a Ministerial Permit, that the applicant: (i) possesspossesses the required licenses, certifications and authorities to cultivate cannabis for personal medicinal use; and (ii) is of good character, honesty, and integrity, and is a person whose background, reputation and associations do not present a substantial risk that the proposed cultivation will not result in adverse consequences. C. Decision Maker. Decision making authority 1. Ministerial Permit. The decision on an application for purposes of Section 4.B. of this Resolutiona Ministerial Permit for personal use cultivation shall be vested with the City Manager,made by the Director of Community Development or his designee, with rights of appeal to and shall be final as provided in PHMC Section C. 2. Development Permit. The decision on an application for a Development Permit for a commercial cannabis activity shall be made by the City Council as specifiedand shall be final as provided in PHMC Section [TBD] F. 3. Certificate of Approval. The decision on an application for a Certificate of Approval for a commercial cannabis activity shall be made by the City Manager or his designee, with a right of appeal to City Council as provided in this paragraph. Upon reaching a final decision on such an application, the City Manager or designee shall provide written notice thereof to the applicant and to any person who has previously requested in writing notice of the decision. Any person aggrieved by the decision may, within ten calendar days following the date of the notice of decision, deliver to the City Manager in writing a written appeal describing the appellant s objections to the decision. Page 136 of 146

137 Upon receipt by the City Manager of a timely appeal, the City Manager or designee shall promptly give written notice to the applicant and the appellant that an appeal has been taken and that the matter will be considered and heard by the City Council at a regular or adjourned regular meeting, the date of which shall be set forth in the notice, but in no event, to be more than forty-five (45) days or less than ten (10) days after such notice is mailed to the applicant and appellant. The City Council at the time of such hearing, shall consider all matters pertinent thereto and by its next meeting after such hearing, the City Council shall render its decision either upholding or reversing the action of the City Manager or designee, and/or modifying actions and conditions of the decision appealed from. Written notice thereof, unless waived by the applicant and/or appellant at the time of the hearing, shall promptly be mailed to the applicant and appellant by the City Manager or designee. The decision of the City Council shall be deemed final and conclusive. D. Conditions of Approval. The decision maker may approve or deny in its discretion any application for a Ministerial Permit, Development Permit or Certificate of Approval pursuant to this Resolution, and may condition any approval with such terms and conditions as the decisionmaker determines are in furtherance of the purposes hereof. SECTION 5: Environmental Review. This Resolution is exempt from additional review under the California Environmental Quality Act (California Public Resources Code 21000, et seq., CEQA ) and CEQA regulations (14 California Code of Regulations 15000, et seq.). A. On the basis of evidence provided, and for the reasons set forth in Section 3, Paragraphs B and C, of the Ordinance No. [TBD], will not adversely affect adjoining property as to value or precedent, and will not be detrimental to the area. B. The Resolution does not authorize any new construction or use; rather, it merely prescribes a process that requires the vetting of environmental, land use and operational issues in connection with each permit application. As such, the Resolution is not a project under CEQA because: (1) it establishes "general policy and procedure making" (CEQA Guidelines 15378(b)(2); and (2) it constitutes "organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment (CEQA Guidelines 15378(b)(5)). C. The Resolution is self-mitigating insofar as it provides the means for avoiding environmental impacts, if any are identified, as part of each discretionary permit application. As stipulated in PHMC Section 10352C(7), each conditional use application is subject to separate Page 137 of 146

138 environmental review under CEQA. Furthermore, as stipulated in PHMC Sections and 10542, conditional uses within the R-4, C-1 and M-1 zones may only be allowed so long as they will not be injurious or detrimental to the public health, safety or welfare or to property in the vicinity or zone in which the use or uses will be situated. D. D. Issuance of ministerial permits for personal, non-commercial cultivation is categorically exempt as a Class 1 or Class 5 project in so far, at best, the activities that are authorized would constitute a minor alteration of existing public structures involving no expansion of use, or a minor alteration in land use limitations (see 14 CCR 15301, 15305). SECTION 6: Delegation of Authority. While this Resolution establishes the minimum requirements and qualifications for persons seeking to obtain a Certificate of Approval, the City Manager, or designee, is authorized to promulgate from time to time administrative policies and procedures ("AP&P") that implement PHMC Article III and, specifically, such additional measures as may be necessary for obtaining a Certificate of Approval. Nothing in such AP&P can substantively alter this Resolution; the AP&P must be reconciled. The AP&P may add additional requirements, procedures and criteria but shall be consistent with the intent of PHMC Article III and this Resolution. SECTION 7: The Mayor, or presiding officer, is authorized to sign this Resolution signifying its adoption by the City Council of the City of Port Hueneme and the City Clerk, or her duly appointed deputy, may attest thereto. SECTION 8: This Resolution will become effective immediately upon effectuationthe effective date of the Ordinance No. [TBD] and will remain effective unless repealed or superseded. PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF PORT HUENEME ON THIS DAY OF, ATTEST: MAYOR APPROVED AS TO FORM: Page 138 of 146

139 PHNE/0001-1/DOC/001-2.DOC 5/17/ law Page 139 of 146

140 CITY OF PORT HUENEME NOTICE OF PUBLIC HEARING BEFORE THE PORT HUENEME CITY COUNCIL NOTICE IS HEREBY GIVEN that the City Council of the City of Port Hueneme will hold a Public Hearing on the 22nd day of May, 2017 at the hour of 2:00 p.m. in the City Hall Council Chamber located at 250 N. Ventura Road, Port Hueneme. SAID HEARING is to consider an Ordinance of the City Council of the City of Port Hueneme Amending Article III and Repealing Part F of Chapter 2 of Article X of the Municipal Code to Implement the Compassionate Use Act of 1996 and Other State Laws by Allowing Medicinal Cannabis Facilities within the City Subject to Regulatory Parameters that Protect Public Health, Safety and Welfare. AN INITIAL REVIEW of the proposed ordinance has been conducted pursuant to the California Environmental Quality Act (California Public Resources Code 21000, et seq., CEQA ) and CEQA regulations (14 California Code of Regulation 15000, et seq.). The proposed Municipal Code amendments would add provisions to regulate commercial cannabis activity that: (i) will not adversely affect adjoining property as to value or precedent and will not be detrimental to the area; (ii) does not authorize any new construction or use but rather describes a process that will require vetting of environmental, land use and operational issues in connection with each application for a Certificate of Approval and is therefore not a project under CEQA because it establishes general policy and procedure making [CEQA Guidelines Sec.15378(b)(2)], and constitutes organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment [CEQA Guidelines 15378(b)(5)]; (iii) the Implementing Resolution is self-mitigating insofar as it provides the means for avoiding environmental impacts, if any are identified, as part of each discretionary application for a Certificate of Approval, and as provided in PHMC Section 10352C(7), each conditional use application is subject to separate environmental review under CEQA; and (iv) issuance of ministerial permits for personal, non-commercial cultivation is categorically exempt as a Class 1 or Class 5 project insofar as, at best, the activities that are authorized would constitute a minor alteration of existing public structures involving no expansion of use, or a minor alteration in land use limitations (see 14 CCR Sections 15031, 15305). Based on the foregoing staff has determined that this ordinance is exempt from further environmental review. REFERENCE is hereby made to the documents and other data on file with the Community Development Department for further particulars. The agenda report on this matter will be available on the city s website and in the City Clerk s Office on or about May 18, 2017, and copies may be obtained at cost. For additional information, please call (805) ANY INTERESTED INDIVIDUAL may appear in person or by agent at such hearing and be heard on any matter relevant to the proceedings. If you challenge the proposed action in court, you may be limited to raising only those issues you or someone else raised at Page 140 of 146

141 the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing. Michelle Kostenuik, City Clerk Publish: Tri-County Sentry, May 12, 2017 (TO BE PUBLISHED IN THE TRI-COUNTY SENTRY Friday, 5/12/17) Page 141 of 146

142 Page 142 of 146

143 City of Port Hueneme COUNCIL AGENDA STAFF REPORT TO: FROM: City Council Carmen Nichols, Deputy City Manager SUBJECT: ADOPTION OF RESOLUTION FOR EXCEPTION TO 180-DAY WAIT PERIOD PER GOVERNMENT CODE FOR ANNUITANT SERVING AS ELECTED OFFICIAL. DATE: MAY 22, 2017 RECOMMENDATION: It is recommended the City Council adopt a Resolution for exception to the 180- day wait period per Government Code for services served as an Elected Official. BACKGROUND/ANALYSIS: Councilmember Willard Berg was employed by the Oxnard Harbor District/Port of Hueneme ( OHD ) earning service credit toward the California Public Employees Retirement System ( CalPERS ). On December 5, 2016 Mr. Berg was elected and sworn in as a City of Port Hueneme Council Member while continuing his employment with OHD. The City of Port Hueneme is a member agency of CalPERS. On April 18, 2017 Mr. Berg retired from the Oxnard Harbor District and filed application for pension from CalPERS, while still operating as a Councilmember for the City. Since he was considered a retiree, no further service credit reported during his continued appointment as a Councilmember. CalPERS has recently taken the position that elected officials are considered annuitants, and therefore are required to follow post-retirements rules consistent with all other retirees. In CalPERS interpretation, an elected official must wait 180 days after retiring to serve in the elected office again. The City disagrees and argues that Government Code 21221(d) exempts elected officials for postretirement rules, A retired person may serve without reinstatement from retirement or loss of interruption of benefits provided by this systems as follows: (d) As an elective officer on and after September 15, Page 143 of 146 6A