CITY OF SOUTH LAKE TAHOE ORDINANCE NO.

Transcription

1 CITY OF SOUTH LAKE TAHOE ORDINANCE NO. _ AN ORDINANCE OF THE CITY OF SOUTH LAKE TAHOE CITY COUNCIL AMENDING CITY CODE CHAPTER 32 - PLAN AREA STATEMENTS AND OTHER LAND USE REGULATIONS, BY ADDING ARTICLE X - MEDICAL MARIJUANA CULTIVATION, SECTIONS THROUGH WHEREAS, California Government Code, Section 65850(c)(4) provides the authority for the City of South Lake Tahoe to regulate, by ordinance, the intensity of land use; and WHEREAS, the State of California approved Proposition 215 "The Compassionate Use Act of 1996" (Health and Safety Code Section ), which allowed the use of marijuana for medical purposes; and WHEREAS, the State of California enacted S8 420 in 2004 (Health and Safety Code Section et seq.) to clarify the scope of The Compassionate Use Act to allow local governing bodies to adopt and enforce rules and regulations consistent with S8 420; and WHEREAS, under the Controlled Substances Act, the use, possession and cultivation of medicinal marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need; and WHEREAS, marijuana plants, as they begin to flower and for a period of two months or more during the growing season (August through October for outdoor cultivation), produce a strong odor, which can be detected at some distance from the plant itself; and WHEREAS, the City has received numerous complaints of odor related to the growing of medicinal marijuana; and WHEREAS, in the case of multiple qualified patients who are in control of the same legal parcel, or parcels of property, or in the case of a caregiver growing for numerous patients, a very large number of plants are often grown on the same legal parcel or parcels, within the City of South Lake Tahoe; and WHEREAS, it is the purpose and intent of this ordinance to implement state law by providing a means for regulating the cultivation of medicinal marijuana in a manner that is consistent with state law and balances the needs of medical patients and their caregivers and promotes the health, safety, morals and general welfare of the residents and businesses within the City of South Lake Tahoe. Nothing in this ordinance shall be constructed to allow the use of marijuana (cannabis) for non-medical purposes, or allow

2 any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal; and WHEREAS, the potential adverse effects of allowing the cultivation of medicinal marijuana present a clear and present danger to the immediate preservation of the public peace, health, and safety of the community, whereas, the City has no rules or regulations governing the cultivation of medical marijuana; and WHEREAS, it is the purpose and intent of this ordinance to ensure that marijuana grown for medical purposes involves a safe, secure, and healthy process; and WHEREAS, it is the purpose and intent of this ordinance to help law enforcement agencies perform their duties effectively and in accordance with California law; and WHEREAS, the cultivation of marijuana within a residence has potential adverse effects to the structural integrity of the residence and has the potential to increase the chances of fire which presents a clear and present danger to the occupants and community; and WHEREAS, the indoor cultivation of substantial amounts of marijuana may require great amounts of electricity, which may create risk of fire; and umbers of ju\'eniles and d" schools attract large n.. egg feet of a WHEREAS, ~reas S~t:t:al=j~ana at locations. or premises~h'~~:~ by ju'leniles. the cultivation ~~:n:it~m:;nerable to theft or recre:~~?:ha~:~ir::n:cultivation in such '''''00' make,.. '0' fer ""ml.o' ogli.i'e,.asso?'o",.7,'.e I.vo'.eo or e.oo."e",o. Further, the po en ~. htened risks that Juveniles v~1 h locations or premises IS r e~g of any amount of marijuana In t s~:e protection of children and locations pose.~, Therefore, cultha 10 ublic safety and welfare, and 0 especially hazard.ou~. to fhe mariiuana slants: and the serson(s) cultlva InQ WHEREAS, The Attorney General's August 2008 Guidelines for the Security and NonDiversion of Marijuana Grown for Medical Use recognizes that the cultivation or other concentration of marijuana in any location or premises without adequate security increases the risk that surrounding homes or businesses may be negatively impacted by nuisance activity such as loitering or crime. ARTICLE X. MEDICAL MARIJUANA CULTIVATION It is the purpose and intent of this ordinance to require that medical marijuana be cultivated in appropriately secured, enclosed, and ventilated structures, so as not to be visible to the public domain, to provide for the health, safety and welfare of the public, to prevent odor created by marijuana plants from impacting adjacent properties, 2

3 and ensure that marijuana grown for medical purposes remains secured and does not find its way to non-patients or illicit markets. This ordinance is in compliance with the California Health & Safety Code section and does not interfere with a patient's right to medical marijuana, nor does it criminalize the possession or cultivation of medical marijuana by specifically defined classifications of persons, pursuant to Proposition 215 and Senate Bill DEFINITIONS For purposes of this ordinance, the following words shall have the following meaning. Abatement. The removal of marijuana plants and improvements that support marijuana cultivation. Building Inspector/Building Official. The City Building Official or his/her designee. City. The City of South Lake Tahoe. City Manager. The City Manager or his/her designee. Cultivation/Cultivation. The planting, growing, harvesting, drying, trimming, clipping or processing of any kind or size of marijuana plants, or any part thereof. Dwelling Unit. A room or group of rooms (including sleeping, eating, cooking, sanitation facilities, but not more than one kitchen) which constitutes an independent housekeeping unit or living area, occupied by one household for a period of time in excess of thirty (30) days. Dwelling unit does not include attached or detached structures such as garages, sheds, greenhouses, and other structures on the same legal parcel(s) as the independent housekeeping unit. Dwelling unit also not include any basements or attics in the dwelling unit. Enforcement Officer. The City Manager, Development Services Director, Fire Marshal, Building Official or Police Chief of South Lake Tahoe or any of their designees. Fire Marshal. The City Fire Marshal or his/her designee. Fully enclosed and secure structure. A space within a building, greenhouse or other structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, provides complete visual screening, and which is accessible only through one or more locking doors. Indoor. That area within a fully enclosed and secure structure. 3

4 Medical Marijuana. (Also known as medical cannabis) Marijuana, including constituents of marijuana or cannabis, Tetrahydrocannabinol (THC) and other cannabinoids, used as a physician-recommended form of medicine in accordance with the Compassionate Use Act (California Health and Safety Code section ) and the Medical Marijuana Program Act (California Health and Safety Code section et seq.). Medical Marijuana Cooperative or Collective. Any person, association, cooperative, affiliation, or collective of persons who provide education, referral, or network services, and/or facilitation or assistance in the cultivation, processing or distribution of medical marijuana. Medical Marijuana Cultivation Area. That area and space within and in compliance with the maximum dimensions permissible for the cultivation of medical marijuana. Outdoor/Outside. Any location within the City of South Lake Tahoe that is not within a fully enclosed and secure structure. Permittee. Any person issued a City permit pursuant to this Ordinance. Primary caregiver. The individual designated by a qualified patient who has consistently assumed responsibility for the housing, health, or safety of that qualified patient, or as defined in California Health and Safety Code section et seq., as it may be amended and as interpreted by the California court, including but not limited to the California Supreme Court case of People v. Mentch (2008) 45 Cal.4 th 274. Qualified patient. As defined in California Health and Safety Code section et seq., and as it may be amended from time to time Residence. A legal dwelling unit and all detached structures such as garages, sheds, greenhouses, and other structures on the same legal parcel(s) as the independent dwelling unit. Residential Cultivation Permit. Permit issued by the City pursuant to this ordinance for cultivation in a residence CULTIVATION OF MEDICAL MARIJUANA A. Limited to Cultivation in a Residence Cultivation: The cultivation of medical marijuana is limited to cultivation in a residence, as set forth in this ordinance. B. No Vested Rights: No person(s) shall have any vested rights to any permit, right or interest under this ordinance, regardless of whether such person(s) cultivated marijuana prior to adoption of this ordinance. 4

5 C. No Transferring of Rights: No Residential Cultivation Permittee shall have any right to transfer or transfer interest in any permit which they are issued pursuant to this ordinance. Permits issued pursuant to this ordinance will become void if transferred. used, or relied upon by any person other than the person to whom the permit was issued. D. Outdoor Cultivation: It is hereby declared to be unlawful and a public nuisance per se for any person owning. leasing, occupying, or having charge or possession of any property within the City to cause or allow such property to be used for the outdoor cultivation. Cultivation is limited to those areas within a fully enclosed and secure structure. E. Inspection: The Building Inspector or Fire Marshal may enter and inspect any property cultivating marijuana (a residence. or any structure) at any time between the hours of 8:00 a.m. and 9:00 p.m. on any day of the week or at any reasonable time to ensure compliance and enforcement with the provisions of this ordinance. No person shall refuse, impede, obstruct. or interfere with an inspection pursuant to this ordinance. F. Fees and Taxes: The costs to the City arising from the processing and oversight of Residential Cultivation Permits issued pursuant to this ordinance will be offset through application fees and annual renewal fees, to be adopted by the City Council by Resolution and updated as necessary from time-totime, In the administration of the permitting requirements under this ordinance, the City Manager may require as a condition to granting and renewal of the permits any information reasonably necessary to implement the intent of this ordinance, to ensure that the marijuana handled under the permit is grown, processed or distributed in a manner not in conflict with this ordinance, and to ensure that any and all related sales taxes are being properly reported and paid. G. Authorization of Property Owner: If the residence where cultivation occurs facility is leased or rented, Residential Cultivation Permits shall only be issued upon a written notarized authorization by the residence property owner which shall be submitted with said permit application. The property owner may require additional security as he/she deems appropriate. The property owner may revoke said authorization by providing a sixty (60) day notice of revocation of authorization, in writing, to the City and the Residential Cultivation Permittee to whom property owner has provided authorization. Sixty (60) days after receipt of said notification, the Residential Cultivation Permit which has been issued pursuant to said property owner's authorization shall be considered null and void. H. Authorization of Tenants: If the residence where cultivation occurs is a building, residence or property shared with other tenants. Residential 5

6 Cultivation Permits shall only be issued upon authorization of adjacent tenants in the building, residence or property. I. Exterior Evidence: From a public right of way, there shall be no exterior evidence of medical marijuana cultivation occurring at the residence. J. Public Nuisances: Cultivation shall not create a public nuisance and adversely affect the health or safety of persons residing in or near the residence where the cultivation occurs. A public nuisance may be deemed to exist, if cultivation produces: 1. Odors which are disturbing to people of normal sensitivity residing or present on adjacent or nearby properties or areas open to the public; 2. More than three substantiated responses to valid confirmed complaints in a one year time period to the residence or medical marijuana cultivation facility from law enforcement officers; 3. More than three disruptions in a one year time period to the free passage of persons or vehicles in the neighborhood; 4. Excessive noise which is disturbing to people of normal sensitivity on adjacent or nearby properties or areas open to the public in accordance with Section of the City Code. 5. Adverse affects to health or safety through creation of mold, mildew, dust, glare, heat, noise, noxious gasses, odor, smoke, traffic, parking, vibration, or other impacts, or be hazardous because of the use or storage of materials, processes, products or wastes. K. Environment: Runoff and waste disposal by the residence where cultivation occurs must be in compliance with any applicable City, county, regional, State, and federal laws and regulations. A violation of any applicable City, county, regional, State, or federal law, will be deemed a violation of this ordinance and of the permit, and shall render the permit void and revocable by the City. L. Cooking: No cooking, baking, or alteration as to form and substance of medical marijuana for commercial purposes, and/or sale, is permitted without necessary local, State, and other permits for the commercial sale of cooked, baked. or erosessed foods_~ M. Implementation of Ordinance: The City shall adopt procedures to require all cultivation of medical marijuana in a residence to be compliance with this Ordinance no later than December 19, All cultivation occurring which is 6

7 not in compliance with this ordinance on or after December 20, 2011, shall cease operation immediately, unless the City Council adopts an ordinance to extend these provisions CULTIVATION OF MEDICAL MARIJUANA IN A RESIDENCE A. Restricted to Qualified Patients and Primary Care Givers: A qualified patient or primary caregiver shall only be allowed to cultivate medical marijuana for their personal use, and qualified patients, if such cultivation occurs in a residence as defined in this ordinance. B. Only Permitted Pursuant to a Valid City Residential Cultivation Permit. Cultivation in a residence shall be deemed unlawful except pursuant to a valid Residential Cultivation Permit. Issuance of a Residential Cultivation Permit shall be subject to evaluation by the City Building Official. Residential Cultivation Permits require verification that the person(s) cultivating are qualified patients or primary caregivers. Residential Cultivation Permits shall require an annual inspection by the Building Official and Fire Marshal. Permits shall expire and become void two (2) years following the date on which said Permit was issued, unless said Permit is renewed prior to the expiration date. C. Application for Permit. 1. The permit shall be filed with the City Manager. The application for a permit shall include, but not be limited to, the following: a. Application and annual inspection fees set by Resolution of the City Council; and b. Adequate information and comments, such as a physician's recommendation, or verification that a qualified patient or primary caregiver resides in the residence. 2. Prior to the issuance of the permit, the Building Official and the Fire Marshal, shall conduct an inspection of the cultivation area to confirm that no health or safety concerns are present, and the cultivation area complies with the standards set forth in this Chapter. 3. The Building Official and the Fire Marshal may require additional specific standards to meet the standards set forth in the California Building Code or other applicable law. Additional requirements may apply when cultivation exceeds ten (10) percent of the area of dwelling unit. The property owner shall obtain building permits and any other permits necessary to comply with the applicable California Building Code or other applicable law. 7

8 4. The City Council finds that the public interest served by not disclosing the name and address location of the applicant for a permit clearly outweighs the public interest served by disclosure of the record pursuant to the California Public Record Act. The Council makes this determination based on the security and crime risk to the applicant if the name and address is disclosed under the Public Records Act. D. Renewal of Permit for Cultivation of Marijuana. No later than thirty (30) days before expiration of a valid permit for cultivation of medical marijuana, the permittee shall submit to the City an application for renewal of his/her permit to cultivate medical marijuana. The application shall be on a City form and be accompanied by an application fee as set forth by Resolution of the City Council. An inspection of the premises shall be required as part of the process for renewal of a permit. E. Cultivation in residences shall be in conformance with the following requirements: 1. Cultivation of medical marijuana in a residence is limited to a medical marijuana cultivation area that does not cumulatively exceed ten percent (10%) of the square footage of the living space of a dwelling unit, or 200 square feet, whichever is lesser.o Cultivation may occur in attached or detached structures such as garages, sheds, greenhouses, and other structures on the same legal parcel(s) as the independent housekeeping unit, as long as such structures are fully enclosed and secure structures, and comply with the South Lake Tahoe City Code and all other applicable regulations and laws. The ten percent (10%) limitation on cultivating marijuana shall be based only on the square footage of the living area of the dwelling unit and will not consider any square footage of detached or attached structures, attics or basements. 2. The qualified patient or primary caregiver shall have his/her primary residence be in the residence where the cultivation occurs. 3. Cultivation shall only occur in residences which are in full compliance with the Code, including the Building Code and Fire Code. 4. Prior to the cultivation in any residence, the qualified patient or primary caregiver shall have the cultivation area inspected by the Building Inspector and obtain or show proof of the necessary permits under the Building Code or Fire Code. 5. Cultivation shall remain at all times a secondary or accessory use to the residential use of the residence. 8

9 6. Distribution of medical marijuana cultivated in residences shall be limited to a permitted collective or a qualified patient of whom the permittee is primary caregiver. 7. More than one Residential Cultivation Permittee(s) may reside and cultivate in a single residence, however the number of permittees residing in a residence shall not affect the requirements set forth in section (E)(1) or any other provision of this ordinance PENALTIES; ENFORCEMENT A. Nuisance Per Se. Any violation of this ordinance is hereby declared a publi~ nuisance per se B. Notice of Violation and Abatement. When!h~ 9lty _Manager or Building Official-_ determines that acts are being performed or conditions exist which are in violation of this Ordinance, the City Manager shall AGtify--provide the owner of the property, the Residential Cultivation Permittee, or any other persons having an interest of record in the property, notice that a violation of this Ordinance has occurred. Said notice shall state that the property owner, Residential Cultivation Permittee, or any other person causing the nuisance. has ten (10) calendar days _ or less, depending on the recommendation of the Building OfficiaL to come into compliance with this Ordinance, and that failure to do so.shall require abatement of said violation which may include the reguirement to remove all medical marijuana and related improvements. -' If the City Manager or Building Official determines that the nuisance has neither been corrected n.or abated within ten (101 days of issuance of the notice of violation, the City Manager or Building Official may effectuate the abatement of the public nuisance by the use of City forces or by such contractors as may, in the judgment of the City Manager, be necessary to abate the nuisance. A. that they have ten (1 Q) calendar days to some into oom",lianoe with the ordinanoe. If additional time is needeet to some into oom",lianoe with the Uniform 8uileting Goete or Fire Gode, the Gity Manager may, in his etisoretion, extend the ten (1 Q) etay notioe ",eriod, if the ",ro",erty ownerltenant is making a good faith effort to oom",ly '>'lith this oretinanoe. The notioe shall be given ",rior to im",lementing any of the remeeties set forth in the seotion. C. /'or". islatier sf tflis ersirar >e is FlereD". leelare l 3 f3~dlie Rwis3R8e ~er se. Any, ",erson violating any ",rovision of this oretinanoe shall be deemeet guilty of a infraotion,fines for Cultivating Medical Marijuana without a Residential Cultivation Permit. Any person violating this ordinance for failure. to obtain a ', Residential Cultivation Permit shall be punished by a fine not to exceed $1,000. ', Such person shall be deemed guilty of a separate offense for each and every day 9 Formatted: Outline numbered + Level: 1 + Numbering Style: A, B, C,... + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Tab after: OS' + Indent at: 0.5" Formatted: Outline numbered + Level: 1 + Numbering Style: A, B, C,... + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Tab after: OS' + Indent at: OS' 1 Formatted: Left, Indent: Left: 0.5", Space After: 10 pt, Line spacing: Multiple 1.15 Ii, No bullets or numbering Formatted: Left, Space After: 10 pt, Line spacing: Multiple 1.15 Ii Formatted: List Paragraph, Outline numbered + Level: 1 + Numbering Style: A, B, C,... + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Tab after: 0.5" + Indent at: 0.5" Formatted: Space After: 10 pt, Line spacing: Multiple 1.15 Ii, Outline numbered + Level: 1 + Numbering Style: A, B, C,... + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Tab after: 0.5" + Indent at: 0.5" Formatted: Font: (Default) Arlai, 12 pt Fonnatted: Font: (Default) Arlai, 12 pt

10 '0. during any portion of which any violation of this ordinance is committed, continued or permitted by such person. Such fine shall be assessed beginning on the day that a notice of violation is issued pursuant to subsection B of this section, and shall continue until said violation is abated or a Residential Cultivation Permit is acquired. B,-Fines for Failure to Comply with Residential Cultivation Permit. Any person violating this ordinance for failure to comply with the terms of a Residential Cultivation Permit shall be punished by a fine not to exceed $1,000. Such person shall be deemed guilty of a separate offense for each and every day during any portion of which any violation of this ordinance is committed, continued or permitted by such person. Such fine shall be assessed beginning on the tenth lh ~ Formatted: Indent: Left: 0.5", No bullets or numbering (10 ) day after a notice of violation is issued pursuant to subsection B of this _ -i Formatted: Superscript e section, and shall continue until said violation is abated or a Residential Cultivation Permit is acquired. C\AEI l:ipl?n con,!,iction shall bejll:lnisheei ~ a fin~ -i not to exceeel one huneireei Elollars ($100) for the first violation; (b) a fine not exceeeling t\..'o huneireei fifty Elollars ($2130) for a seconei violation of the same orelinance provision within two years; anei (c) a fine not exceeeling five huneireei Elollars ($1300) for each aelelitional violation of the same orelinance provision within t\tjo years. Such person shall be EleemeEi guilty of a separate offense for each anei ever)' Elay Eluring any portion of which any violation of this orelinance is committeel, continueei or permitteei by such person anei shall be punishable as herein oro'/ieleei. Formatted: Space After: 10 pt, Line spacing: Multiple 1.15 Ii, Outline numbered + Level: 1 + Numbering Style: A, B, C,... + Start at: 1 + E, Civil Action. In addition to criminal sanctions, the City Attorney, in the name of Alignment: Left + Aligned at: 0.25" + Tab after: 0.5" + Indent at: OS' and on behalf of the City, and/or people of the State, may bring a civil action in a court of competent jurisdiction to enforce any provision of this ordinance, or to restrain or abate any violation of the provisions of this ordinance as a public nuisance. C.F. Complaints. Complaints of suspected violations of this Ordinance shall be directed to the Building Official. -A"i3ateR,ieRt l3-rseeayre. The Cit~' MaRager sr 8~ilaiRg Offieial is -a~t-heri2e~ te 9r~er t~e abatefrert sf ary vislatisr sf this orairaree by followirg the abatefrert J3Foeea~re as aefirea ir Chal3ter 17 of the City Coae. 11'1 aaaitioa, tre 8~i1aiRg Offieial, Poliee Chief, sr Fire Chief FRay re l~ire tre I3rOl3ert>; OWRer or teaart of the resiaeaee where e~ltivatior oee~rs to l3ersorall',. abate ara!or refrove all FReaieal FRarij~aAa aaa ifrl3rovefreats to the resiaeree if eitrer violate aa',. I3rovisioR of tris oraiaaaee. Formatted: List Paragraph, Left, No bullets or numbering Formatted: Left, Space After: 10 pt, Line spacing: Multiple 1.15 Ii, No bullets or numbering ~ G Revocation. The permit may be revoked by code enforcement in accordance with this Chapter 32, starting at section et seq. 10 { Formatted: Normal

11 F H Cumulative Remedies" Unless otherwise expressly provided, the -{ Formatted: No underline remedies, procedures and penalties provided in this ordinance are cumulative to each other and to any other remedies, procedures and penalties available under state law or the City Code. G.I Recovery by Property Owner. Notwithstanding any provision of this ordinance, a property owner who rents or leases a residence to any person who violates any provision of this ordinance or any other applicable regional, State or federal law, may recover for actual damages to the residence against the tenant as allowed under federal, California, or local law LIABILITY & INDEMNIFICATION A. To the fullest extent permitted by law, any actions taken by a public officer or employee under the provisions of this ordinance shall not become a personal liability of any public officer or employee of the City. B. Permitees pursuant to this ordinance hereby agree to save, defend, indemnify and keep harmless the City and its officials, officers, employees, representatives, agents and volunteers from all actions, claims, demands, litigation, or proceedings, including those for attorneys' fees, against the City in consequence of the granting of this permit, and will, in all things, strictly comply with the conditions under which this permit is granted, if any SEVERABILITY If any provision of this ordinance, or the application thereof to any person or circumstance, is held invalid or ineffective by any court of competent jurisdiction, or by reason of any preemptive legislation, that invalidity shall not affect the validity of the remaining provisions of this ordinance. The City Council declares that it would have passed this ordinance and each section, subsection, subdivision, sentence, clause and phrase, irrespective of the fact that anyone or more sections, subsections, subdivisions, sentences, clauses, phrases or words be declared invalid. 11

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