What's the rush? Medical marijuana is a complex issue, and there's much to be said on both sides of the debate. I'm concerned that the short time frame contemplated may cause important information to be missed.
At least when the City Council tried a similar quick turnaround in the spring of 2012, voting to place a charter on the ballot just a few days before the deadline for ballot arguments, there had been several public hearings, and we were able to prepare somewhat in advance. In that case, the rush resulted in mistakes and litigation, with a charter eventually placed on the ballot for the November election in 2012 instead of in June as originally planned.
In this case, the ordinance was prepared at the behest of a single council member behind closed doors. Setting aside conformance with City Council Policy 300-6 aka "the four hour rule", shouldn't we have worked this out with public input, taking the time for all interested parties to be involved? Is a single public hearing adequate to study all the relevant issues?
What will be the impact on public safety? On other land uses and businesses? On our ability to continue to attract quality businesses? What will be the fiscal impact?
What has been the experience of other communities which have allowed marijuana dispensaries? How does the proposed ordinance compare to those in other cities? The San Jose ordinance specifies a minimum distance to be maintained between marijuana dispensaries and parks and between dispensaries and rehab facilities. The Los Angeles ordinance assesses a tax of $60.00 for each $1,000.00 in gross receipts. Why weren't these provision included in the proposed Costa Mesa ordinance? What other provisions should be considered?
I will be looking for answers to all of these questions and am hoping for input from anyone concerned about this issue.
To encourage informed participation, and out of fairness to those who may wish to prepare ballot arguments on either side if we get that far, the text of the proposed initiative ordinance is posted below:
CHAPTER
VI. MEDICAL MARIJUANA DISPENSARIES AND CULTIVATION
Section
9-491. Purpose
The purpose of this chapter
is to establish a comprehensive set of regulations with attendant regulatory permits
applicable to the operation of medical marijuana dispensaries, as well as the
cultivation of medical marijuana. The regulations are intended to ensure such
operations and cultivation are consistent with the overall health, welfare and
safety of the city and its populace, and that such operations are in compliance
with California’s Compassionate Use Act of 1996 as well as California’s Medical
Marijuana Program Act of 2003.
The chapter is not intended
to permit activities that are otherwise illegal under federal, state or local
law. This chapter is not intended to conflict with federal or state law.
Section
9-492. Operation Prohibited Without Permit
It shall be unlawful to own,
establish, operate, use, or permit the establishment or operation of a medical
marijuana business, or to participate as an employee, contractor, agent,
volunteer, or in any manner or capacity other than as provided in this chapter.
The general prohibition contained in this section shall include renting, leasing,
or otherwise permitting a medical marijuana business to occupy or use a
location, vehicle, or other mode of transportation.
Section
9-493. Definitions
The following definitions
shall apply to this chapter unless the context clearly denotes otherwise.
a)
“Applicant” means a person who is required to
file an application for a permit or a license under this chapter.
b)
“Attending physician” has the same definition
as set forth in Health and Safety Code section 11362.7.
c)
“Attorney General Guidelines” shall refer to
the California Attorney General Guidelines for the Security and Non-diversion
of Marijuana Grown for Medical Use, issued by the Attorney General’s Office in
August, 2008, as amended from time to time, which sets regulations intended to
ensure the security and non-diversion of marijuana grown for medical use by
qualified patients or primary caregivers.
d)
“City CEO” has the same meaning as “city
manager” in Section 2-97 of this code and shall include his or her designee.
e)
“Cultivation” means the growing of medical
marijuana for medical purposes as defined in strict accordance with Health and
Safety Code sections 11362.5 and 11362.7 et seq.
f)
“Cultivator” means a person who engages in
the cultivation of medical marijuana.
g)
“Delivery” means the act of taking something
to a person or place.
h)
“Dispense” means the selection, measuring,
packaging, labeling, delivery, or distribution or sale of medical marijuana to
a qualified patient or a primary caregiver.
i)
“Edible” has the same definition as “food” as
set forth in Health and Safety Code section 109935.
j)
“Employee” means any person (whether paid or
unpaid) who provides regular labor or regular services for a medical marijuana
business, including but not limited to at the location of a medical marijuana
business.
k)
“Identification card” has the same definition
as set forth in Health and Safety Code section 11362.7, and as may be amended,
and which provides that “Identification card” means a document issued by the
State Department of Health Services that document identifies a person
authorized to engage in the medical use of marijuana and the person's
designated primary caregiver, if any.
l)
“Labeling” means all labels and other
written, printed, or graphic matter (a) upon any marijuana intended for medical
use, or (b) accompanying such marijuana intended for medical use.
m) “Location”
means any parcel of land, whether vacant or occupied by a building, group of
buildings, or accessory buildings, and includes the buildings, structures,
yards, open spaces, lot width, and lot area.
n)
“Lighting” means the act of illuminating as
well as the effect achieved by the arrangement of lights.
o)
“Live scan” means a system for inkless
electronic fingerprinting and the automated background check developed by the
California Department of Justice (DOJ) which involves digitizing fingerprints
and electronically transmitting the fingerprint image data along with personal
descriptor information to computers at the DOJ for completion of a criminal
record check; or such other comparable inkless electronic fingerprinting and
automated background check process as determined by the city council.
p)
“Manager” means an employee responsible for management
and/or supervision of a medical marijuana business.
q)
“Marijuana” has the same definition as set
forth in Health and Safety Code section 11018, and as may be amended.
r)
“Medical marijuana” means marijuana used for
medical purposes in accordance with the Compassionate Use Act (Health and
Safety Code section 11362.5) and the Medical Marijuana Program Act (Health and
Safety Code sections 11362.7 et seq.).
s)
“Medical marijuana business” means a medical
marijuana dispensary and/or a medical marijuana cultivation site.
t)
“Medical marijuana cultivation site” means a
location where the cultivation of medical marijuana occurs.
u)
“Medical marijuana dispensary” has the same
meaning as Section 13-6 of the Costa Mesa Municipal Code.
v)
“Member” means either a qualified patient, a
person with an identification card, or a primary caregiver.
w)
“Non-profit” means to use surplus revenue to
achieve the goals of an organization rather than distributing surplus revenue
as profit or dividends.
x)
“Owner” means the owner of a medical
marijuana dispensary and/or a medical marijuana cultivation site.
y)
“Permit” means the various regulatory
licenses issued pursuant to this chapter, including but not limited to a
license for a medical marijuana business.
z)
“Person” means any natural person, firm,
corporation, partnership, club, or any association or combination of natural
persons, whether acting by themselves or through any servant, agent or
employee.
aa) “Person
with an identification card” has the same definition as set forth in Health and
Safety Code section 11362.7, and as may be amended, and which provides that
“Person with an identification card” means an individual who is a qualified
patient who has applied for and received a valid identification card pursuant
to this article [being Article 2.5 of Chapter 6 of Division 10 of the Health
and Safety Code].
bb) “Physician’s
referral” means a written recommendation for a patient from a licensed medical
doctor indicating that marijuana would be a beneficial treatment for a serious
medical condition of the patient.
cc) “Police
Department” means the Police Department of the City of Costa Mesa.
dd) “Primary
caregiver” has the same definition as set forth in Health and Safety Code
section 11362.7(d), (e), and as may be amended.
ee) “Qualified
Patient” has the same definition as set forth in Health and Safety Code section
11362.7(f).
ff)
“Reasonable Compensation” means compensation
commensurate with wages and benefits paid to officers and employees of other
not-for-profit organizations who have similar job descriptions and duties,
required level of education and experience, prior individual earnings history,
and number of hours worked.
gg) “Serious
Medical Condition” has the same definition as set forth in Health and Safety
Code section 11362.7(h), and as may be amended.
Section
9-494. Medical Marijuana Dispensary Permit
Prior to initiating
operations as a medical marijuana dispensary and as a continuing requisite to
conducting operations, the owner of a medical marijuana dispensary shall obtain
a regulatory permit from the City CEO or his/her designee under the terms and
conditions set forth in this chapter. Conditions necessary for the continuing
validity of any and all regulatory permits issued for the operation of a
medical marijuana dispensary include:
a)
Strict adherence to each and every
requirement of this chapter.
b)
Allowing the City CEO or his/her designee and
the Police Department to conduct reasonable inspections of the location of the
medical marijuana business at the discretion of the city, including but not
limited to inspection of security, inventory, and written records and files
pertaining to the medical marijuana business, for the purposes of ensuring
compliance with local and state law.
c)
Maintaining with the city current and valid
contact information of the owner(s) of the medical marijuana dispensary.
d)
Maintaining with the city current and valid
contact information of a legal representative of the medical marijuana
dispensary.
e)
Transferable only if transferee successfully
completes all of the requirements that a new applicant would otherwise need to
meet.
Section
9-495. Medical Marijuana Cultivation Permit
Prior to initiating
operations as a medical marijuana cultivator and as a continuing requisite to
conducting operations, the persons intending
to cultivate medical marijuana shall obtain a regulatory permit from the City
CEO or his/her designee under the terms and conditions set forth in this
Section. Conditions necessary for the continuing validity of any and all
regulatory permits issued for the operation of a medical marijuana cultivation
site include:
a)
Strict adherence to each and every
requirement of this chapter.
b)
Allowing the City CEO or his/her designee, as
well as the Police Department, to conduct reasonable inspections of the
location of the medical marijuana business at the discretion of the city,
including but not limited to inspection of security, inventory, and written
records and files pertaining to the medical marijuana business, for the
purposes of ensuring compliance with local and state law.
c)
Maintaining with the city current and valid
contact information of the owner(s) of the medical marijuana cultivation site.
d)
Maintaining with the city current and valid
contact information of a legal representative of the medical marijuana cultivation
site.
e)
Transferable only if transferee successfully
completes all of the requirements that a new applicant would otherwise need to
meet.
Section
9-496. Applications for Medical Marijuana Dispensary and Cultivation Permits
The owner of a proposed medical
marijuana dispensary and/or a medical marijuana cultivation site shall file an
application with the City CEO or his/her designee upon a form provided by the city
and shall pay a filing fee as established by resolution adopted by the city
council as amended from time to time.
An application for a
regulatory permit for a medical marijuana dispensary permit and/or a medical
marijuana cultivation permit shall include, but shall not be limited to, the
following information:
a)
Address of the location where the medical
marijuana business will be located.
b)
A site plan and floor plan of the premises
denoting all the use of areas on the premises of the medical marijuana business,
including storage, cultivation areas, exterior lighting, restrooms, and signage.
c)
A security plan including the following
measures:
i.
Security cameras shall be installed and
maintained in good condition, and used in an on-going manner with at least 30
days of digitally recorded documentation in a format approved by the Police
Department. The cameras shall be in use 24 hours per day, 7 days per week. The
areas to be covered by the security cameras include, but are not limited to,
the storage areas, cultivation areas, all doors and windows, and any other
areas as determined by the Police Department.
ii.
The lease/business space/cultivation site
shall be alarmed with a centrally-monitored fire and burglar alarm system, and
monitored by an alarm company properly licensed by the State of California
Department of Consumer Affairs Bureau of Security and Investigative Services in
accordance with California Business & Professions Code section 7590 et seq.
and whose agents are properly licensed and registered under applicable law.
iii.
Entrance to the dispensing area, cultivation
site and any storage areas shall be locked at all times, and under the control
of employees with current and valid employee permits.
iv.
Interior Lighting. The premises within which
the medical marijuana business is operated shall be equipped with and, at all times
during which is open to the public or any portion thereof, shall remain
illuminated with overhead lighting fixtures of sufficient intensity to
illuminate every place to which members of the public or portions thereof are
permitted access with an illumination of not less than two foot-candles as
measured at the floor level.
v.
Exterior Lighting. The exterior of the
premises upon which the medical marijuana business is operated shall be
equipped with and, at all times between sunset and sunrise, shall remain
illuminated with fixtures of sufficient intensity and number to illuminate
every portion of the property with an illumination level of not less than one
foot-candle as measured at the ground level, including, but not limited to,
landscaped areas, parking lots, driveways, walkways, entry areas, and refuse
storage areas.
vi.
All windows on the building that houses the
dispensary and/or cultivation site shall be appropriately secured and all
marijuana securely stored, and a reliable, commercial alarm system shall be
installed and maintained.
d)
The name and address of any person who is
managing or responsible for the medical marijuana business’ activities.
e)
The name and address of the owner and lessor
of the real property upon which the medical marijuana business is to be
conducted. In the event the applicant is not the legal owner of the property,
the application must be accompanied with a notarized acknowledgement from the
owner of the property that a medical marijuana business will be operated on
his/her property.
f)
Authorization for the City CEO or his/her
designee to seek verification of the information contained within the
application.
g)
Evidence that the medical marijuana business is
organized as a bona fide non-profit cooperative, affiliation, association, or
collective of persons comprised exclusively and entirely of qualified patients
and the primary caregivers of those patients in strict accordance with California’s
Compassionate Use Act.
h)
A statement in writing by the applicant that
he or she certifies under penalty of perjury that all the information contained
in the application is true and correct.
i)
Any such additional and further information
as is deemed necessary by the City CEO or his/her designee to administer this chapter.
Section
9-497. Obligation of Medical Marijuana Dispensary and/or Cultivation Operation
The obligations of the
medical marijuana dispensary and/or cultivator, including all on-going and
continuing obligations required pursuant to any provision of this chapter or as
may be provided in any conditional approval of the City CEO or his/her designee
or the city council, shall be set forth in a written agreement, approved as to
form by the city attorney, and enforceable by the city. Such written agreement
shall also provide that the medical marijuana dispensary and/or cultivator
shall annually provide to the City CEO or his/her designee an updated
application containing the information provided in the granted application for
a medical marijuana dispensary permit and/or medical marijuana cultivation site
permit
Upon receiving possession of
a regulatory permit as provided in this chapter, the medical marijuana
dispensary and/or cultivator shall:
a)
Provide written authorization to the City CEO
or his/her designee as well as the Police Department, to conduct reasonable
inspections of the location of the medical marijuana business at the discretion
of the city, including but not limited to inspection of security, inventory,
and written records and files pertaining to the medical marijuana business, for
the purposes of ensuring compliance with local and state law.
b)
Execute an agreement indemnifying the city,
its elected officials, employees, agents, officers, and representatives, and
each and all of them individually, from all liability in connection with all
claims, damages, attorney’s fees, costs and allegations arising from or in any
way related to the operation of the medical marijuana business.
c)
Carry insurance in the amounts and of the
types that are acceptable to the City CEO or his/her designee, with minimal
coverage provided of comprehensive commercial general liability insurance and
comprehensive automotive liability insurance (if automobiles are used by the
medical marijuana business for any purpose) protecting the medical marijuana
business in an amount of not less than one million dollars ($1,000,000.00) per
occurrence, combined single limit, including bodily injury and property damage
and not less than one million dollars ($1,000,000.00) aggregate for each
personal injury liability, products liability and each accident. Such insurance
shall name the city, its council members, officers, employees, agents and
contractors as additional insured as respects to any liability arising out of the
operation of the medical marijuana business.
d)
Agree to defend at its sole expense, any
action against the city, its elected officials, employees, agents, officers,
and representatives, and each and all of them individually, which arises from
the application and/or use of this chapter by an applicant.
e)
Agree to reimburse the city for any court
costs and attorney fees that the city may be required to pay as a result of
such action. The city may, at its sole discretion, participate at its own
expense in the defense of any such action.
Failure to perform the
aforementioned actions shall render the operation of a medical marijuana
business unlawful.
Section
9-498. Review of Permit Applications
The City CEO or his/her
designee shall conduct a review of any applicant for any permit authorized
under this chapter, and shall prepare a report on the acceptability of the application.
Upon completing the review process, the permit shall be deemed a qualified
application, unless the City CEO or his/her designee finds:
a)
The applicant has made one or more false or
misleading statements, or omissions on the application or during the
application process; or
b)
A proposed location for a medical marijuana
business is not allowed by state or local law, statue, ordinance, or
regulation, including this code, at a particular location; or
c)
The applicant is not a primary caregiver or
qualified patient or the legal representative of the medical marijuana
business; or
d)
The applicant or any person who is managing
or is otherwise responsible for the activities of the cooperative or collective
has engaged in unlawful, fraudulent, unfair, or deceptive business acts or
practices; or
e)
The applicant has not satisfied each and
every requirement of this chapter.
Based on the information set
forth in the application and the City CEO or his/her designee's review, the City
CEO or his/her designee may impose reasonable terms and conditions on the use
of the permit in addition to those specified in this chapter to ensure the safe
operation of the business, and to ensure the health, safety and welfare of the
citizens and visitors of the City of Costa Mesa.
Section
9-499. Action on Applications for Permits
This section shall govern
action on all applications for all permits provided for in this chapter.
a)
Upon receipt of a completed application and
payment of the application and license fees, the City CEO or his/her designee
shall investigate the information contained in the application to determine
whether the applicant shall be issued the requested permit.
b)
If the City CEO or his/her designee
determines that the applicant has completed the application improperly, the City
CEO or his/her designee shall notify the applicant of such fact within thirty
(30) days of receipt of the application. The incomplete application upon return
as incomplete shall be deemed abandoned. The applicant may then resubmit a new
application for a new review pursuant to the requirements of this section.
c)
Within sixty (60) days of receipt of the
completed application, the City CEO or his/her designee shall complete the
investigation, grant or deny the application in accordance with the provisions
of this chapter, and so notify the applicant as follows:
i.
If the application is denied, the City CEO or
his/her designee shall attach to the application a statement of the reasons for
denial.
ii.
If the application is granted, the City CEO
or his/her designee shall attach to the application the requested permit.
iii.
The application as granted or denied and the
permit, if any, shall be placed in the United States mail, first class postage
prepaid, addressed to the applicant at the address stated in the application.
d)
The City CEO or his/her designee shall grant
the application and issue the requested permit upon findings that the proposed
permit meets all of the requirements of this chapter, unless the application is
denied for one (1) or more of the reasons set forth in section 9-498.
e)
If the City CEO or his/her designee neither
grants nor denies a complete application within sixty (60) days after it is
received (except as provided in section 9-499(b)), the application shall be
forwarded to the city council at its next regularly scheduled meeting for
consideration in strict conformance with the requirements of this chapter.
Section
9-500. General Operating Standards and Restrictions
A medical marijuana business
shall operate in conformance with the following minimum standards, and such
standards shall be deemed to be part of the conditions of approval on the permit
for a medical marijuana business to ensure that its operation is in compliance
with California law, the Attorney General Guidelines, and the Costa Mesa
Municipal Code, and to mitigate any potential adverse impacts of the medical
marijuana business on the public health, safety or welfare.
a)
Security.
i.
One security guard who is licensed by the
State of California shall be present at the location of the medical marijuana
business during all business hours. The security guard shall only be engaged in
activities related to providing security for the medical marijuana business, except
on an incidental basis. Each security guard shall possess a “Security Guard
Card” at all times, and shall not possess firearms. The duties of the security
guard shall include but are not limited to:
a. Ensuring
no person smokes any substance within twenty feet (20') of any building
entrance, exit, window and air intake vent.
b. Monitoring
of the outside of the premises for loitering and unlawful sale of medical
marijuana by members. Security guards shall be directed to report to the
medical marijuana business all unlawful sales of medical marijuana by members,
and the medical marijuana business shall make a report within twenty-four (24)
hours to the Costa Mesa Chief of Police.
ii.
Security cameras shall be installed and
maintained in good condition, and used in an on-going manner with at least 30
days of digitally recorded documentation in a format approved by the City CEO
or his/her designee. The cameras shall be in use 24 hours per day, 7 days per
week. The areas to be covered by the security cameras include, but are not
limited to, the storage areas, cultivation areas, all doors and windows, and
any other areas as determined by the City CEO or his/her designee.
iii.
The location of the medical marijuana
business shall be alarmed with a centrally-monitored fire and burglar alarm
system, and monitored by an alarm company properly licensed by the State of
California Department of Consumer Affairs Bureau of Security and Investigative
Services in accordance with California Business & Professions Code section
7590 et seq. and whose agents are properly licensed and registered under applicable
law.
iv.
All entrances into the building housing a
medical marijuana business shall be locked from the exterior at all times with
entry controlled by employees.
b)
Authorizations.
i.
The City CEO or his/her designee shall have
the right to enter the medical marijuana dispensary and/or cultivation site
from time to time unannounced for the purpose of making reasonable inspections
to observe and enforce compliance with this chapter and all laws of the city
and State of California.
ii.
Recordings made by security cameras required
pursuant to this chapter shall be made available to the City CEO or his/her
designee or the Police Department upon verbal request; no search warrant or
subpoena shall be needed to view the recorded materials.
c)
Records.
i.
Medical marijuana businesses shall maintain
records reflecting:
a. The
full name, address, and telephone number(s) of the owner and/or lessee of the
property.
b. The
full name, address, and telephone number(s) of all employees.
c. Results
of annual live scans of all employees.
d. The
full name, address, and telephone number(s) of all members who participate in
cultivation of marijuana.
e. The
state issued identification card number of all members to whom the medical
marijuana business provides medical marijuana. If a member does not have a
state issued identification card, then the medical marijuana business shall
assign the member a unique identifying number for the use of the medical
marijuana business, and maintain a written copy of the physician’s referral for
the member.
f. The full
name, address, and telephone number(s) of all members to whom the medical
marijuana business provides medical marijuana. This specific identifying information of names, addresses and telephone
numbers of members is considered to be conditionally privileged by the City and
shall be deemed confidential and not subject to City inspection unless such
inspection has been authorized by the City of Costa Mesa Police Chief or
his/her designee in writing pursuant to a reasonable justification.
g. The
designation, by qualified patient(s) and person(s) with identification cards,
of any and all primary caregivers who participate in the collective cultivation
of marijuana.
h. The
dates upon which all members are dispensed medical marijuana, the amount
dispensed, and the name of the recipient.
i. The
delivery of medical marijuana, from the medical marijuana business to a member
located outside of the medical marijuana business location, including but not
limited to the identity of the recipient, the amount delivered, the date of the
delivery, the address of the delivery, the name of the employee making the
delivery, and a written receipt from the member confirming the delivery.
j. A
written accounting of all cash and in-kind contributions, reimbursements, and
reasonable compensation provided by the management members and members to the
medical marijuana business, and all expenditures and costs incurred by the
medical marijuana business.
k. A
copy of the medical marijuana business' commercial general liability insurance
policy and all other insurance policies related to the operation of the medical
marijuana business.
l. An
inventory record documenting the dates and amounts of medical marijuana
received at the medical marijuana business, the amounts of medical marijuana
being cultivated at the location of the medical marijuana business, the daily
amounts of medical marijuana stored at the location of the medical marijuana
business, and the daily amounts distributed to members.
m. Proof
of a valid and current permit issued by the city in accordance with this
chapter. Every medical marijuana business shall display at all times during
business hours the permit issued pursuant to the provisions of this chapter in
a conspicuous place so that it may be readily seen by all persons entering the
location of the medical marijuana business.
ii.
Records shall be maintained on-site, either
in paper or electronic form, and secured and verified by the City CEO or
his/her designee as needed (consistent with requirements pertaining to patient
confidentiality pursuant to applicable State and Federal law), and at least every
12 months by the qualified patient's attending physician.
iii.
All records required to be maintained by the
medical marijuana business for no less than 3 years and are subject to
immediate inspection upon written request by the City CEO or his/her designee.
d)
Employees
i.
A medical marijuana business shall maintain results
of live scans conducted annually by the medical marijuana business on all
employees, the written results of such live scans being maintained at the
location of the medical marijuana business.
ii.
No employee convicted within the last ten
years of a felony substantially related to the qualifications, functions or
duties of an employee of a medical marijuana business (such as a felony
conviction for distribution of controlled substances, money laundering,
racketeering, etc.) shall be employed by a medical marijuana business, unless
such employee has obtained a certificate of rehabilitation (expungement of
felony record) under California law or under a similar federal statute or state
law where the expungement was granted. At the request of the medical marijuana
business, the City CEO shall determine the applicability of this section to a
potential employee within a reasonable period of time after a written request has
been made to the City CEO for such determination.
iii.
All employees must possess a valid government
issued (or equivalent) form of identification containing an identifying
photograph of the employee, the name of the employee, the date of birth of the
employee, and the residential address of the employee. Color copies of such
identification shall be maintained at the location of the medical marijuana business.
A valid California Driver’s license will satisfy this requirement.
iv.
All owners and managers must have a current
and valid identification card.
e)
Volume.
A
medical marijuana business shall only cultivate, dispense, store or transport
medical marijuana in aggregate amounts tied to its members’ needs. To that end
a medical marijuana business shall ensure compliance with state law limits on
amount of dried marijuana and amount of marijuana plants allowed per qualified
patients and persons with identification cards and/or primary caregivers
f)
Only Medical Marijuana.
Medical
marijuana businesses shall dispense, offer for sale or provide only products
which are closely associated with medical marijuana, such as pipes, rolling
papers, etc.
g)
No Recommendations On-site.
A
medical marijuana business shall not have a physician or an attending physician
at the location of the medical marijuana business to evaluate patients or
provide a recommendation for medical marijuana.
h)
Signage.
The
following signs in measurements of not less than eight by ten inches shall be
clearly and legibly posted in a conspicuous location inside the medical
marijuana business where they will be visible to members in the normal course
of a transaction, stating:
i.
"Smoking, ingesting or consuming
marijuana on this property or within 20 feet of the medical marijuana business
is prohibited."
ii.
"Minors are prohibited from entering
this property unless they are a qualified patient or a primary caregiver and
they are in the presence of their parent or legal guardian."
iii.
"Neither the City of Costa Mesa, County
of Orange, nor any other governmental agency has tested or inspected any
marijuana product for pesticides, or other regulated contaminants, distributed
at this location."
iv.
"The sale of marijuana and the diversion
of marijuana for non-medical purposes are violations of state law."
i)
No Alcohol.
Medical
marijuana businesses shall not hold or maintain a license from the State
Department of Alcoholic Beverage Control to sell alcoholic beverages, or
operate a business that sells alcoholic beverages.
j)
No Lounge or Cafe.
Medical
marijuana businesses shall not operate as a lounge, cafe or restaurant serving
food or drinks for consumption on-site. There shall be no seating area, tables,
couches, or chairs for the gathering or congregating of members.
k)
Quality control.
Medical
marijuana businesses shall disclose the percentage level of specified compounds,
as designated from time to time by the City CEO or his/her designee, which are present
in medical marijuana to members before providing medical marijuana.
l)
Labeling.
i.
Any medical marijuana provided to members
shall be properly labeled in strict compliance with state and local laws,
regulations and policies, including but not limited to those established by the
City Office of Cultivation Standards and Quality Control.
ii.
A distinct and clearly legible label must be
affixed onto all medical marijuana items provided by a medical marijuana business
which states:
a. This
item contains medical marijuana
b. Warning
that the item is a medication and not a food
c. Warning
that the item is to be kept away from children.
d. Warning
if nuts or other known allergens are used.
e. Date
of manufacture.
f. Total
weight (in ounces or grams) of marijuana in the item.
iii.
Packaging that makes the product attractive
to children or imitates candy is not allowed.
iv.
Any edible cannabis product that is made to
resemble a typical food product (i.e. brownie, cake) must be in a properly
labeled opaque (non see-through) package before it leaves the medical marijuana
business.
v.
The City Office of Cultivation Standards and
Quality Control shall establish additional minimum requirements as deemed
necessary for labeling of medical marijuana products, which shall be strictly
adhered to by all medical marijuana businesses.
m) Edibles
All
medical marijuana edibles shall comply with the California Sherman Food, Drug,
and Cosmetic Law, as codified in section 109875, et seq. of Part 5 of Division 104 of the Health and Safety Code,
and as amended from time to time. Further minimum requirements for all medical
marijuana edibles include:
i.
No edible medical marijuana products
requiring refrigeration or hot-holding shall be manufactured for sale or
distribution at a medical marijuana business, due to the potential for
food-borne illness. Baked medicinal products (i.e. brownies, bars, cookies,
cakes), tinctures and other non-refrigerated type items are acceptable for
manufacture and sale at a medical marijuana business.
ii.
Edible medical marijuana products for sale or
distribution at a medical marijuana business must have been prepared by a
member of that medical marijuana business. No non-member medical marijuana products
are allowed for sale or distribution at a medical marijuana business.
n)
Signage.
i.
Signs on the premises shall not obstruct the
entrance or the video surveillance system. The size, location, and design of
any signage must conform to the sign provisions in the Costa Mesa Municipal
Code.
ii.
Business identification signage shall be
limited to that needed for identification only, consisting of a single window
sign or wall sign that shall comply with the appropriate sign requirements with
the applicable zoning district.
o)
Employee Training.
i.
All employees of a medical marijuana business
shall receive appropriate training for their intended duties to ensure
understanding of rules and procedures regarding maintaining compliance by the
operation with State and local law.
ii.
The medical marijuana business shall take
those steps necessary to assure that the persons assigned to provide security
are properly trained or employed by a private security service in good standing
with all supervisory or regulatory bodies exercising jurisdiction over such
services.
p)
Supply.
A
medical marijuana dispensary shall only acquire its supply of medical marijuana
from its members.
q)
Operating Hours for Medical Marijuana
Dispensary.
The
maximum hours of operation for a medical marijuana dispensary shall be daily
from 7:00 a.m. to 10:00 p.m.
r)
Use Restrictions.
Smoking,
ingesting or consuming marijuana at the location of the medical marijuana
business or within 20 feet of the medical marijuana business is prohibited.
s)
No Minors.
i.
Minors are prohibited from entering the
location of the medical marijuana business unless they are a qualified patient
or a primary caregiver and they are in the presence of their parent or legal
guardian.
ii.
No minor shall operate a medical marijuana
dispensary in any capacity, including but not limited to, as a management
member, employee, contractor or volunteer.
t)
Odors.
A
medical marijuana business shall have an air treatment system that ensures
off-site odors shall not result from its operations. This requirement at a
minimum means that the medical marijuana business shall be designed to provide
sufficient odor absorbing ventilation and exhaust systems so that any odor
generated inside the location of the medical marijuana business is not detected
outside the building, on adjacent properties or public rights-of-way, or within
any other unit located within the same building as the medical marijuana
business, if the use only occupies a portion of a building.
u)
Insurance.
A
medical marijuana business shall carry insurance in the amounts and of the
types that are acceptable to the City CEO or his/her designee, with minimal
coverage provided of comprehensive commercial general liability insurance and
comprehensive automotive liability insurance (if automobiles are used by the
medical marijuana business for any purpose) protecting the medical marijuana
business in an amount of not less than one million dollars ($1,000,000.00) per
occurrence, combined single limit, including bodily injury and property damage
and not less than one million dollars ($1,000,000.00) aggregate for each
personal injury liability, products liability and each accident. Such insurance
shall name the city, its council members, officers, employees, agents and
contractors as additional insured as respects to any liability arising out of the
operation of the medical marijuana business.
v)
Site management.
i.
The medical marijuana business permit holder
shall take all reasonable steps to discourage and correct conditions that
constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding
the premises and adjacent properties during business hours if related to the
members of the subject medical marijuana business.
a. "Reasonable
steps" shall include immediately calling the police upon observation of
the activity, and requesting that those engaging in activities that constitute
a nuisance or are otherwise illegal to cease those activities, unless personal
safety would be threatened in making the request.
b. "Nuisance"
includes but is not limited to disturbances of peace, open public consumption
of medical marijuana or alcohol, excessive pedestrian or vehicular traffic,
including the formation of any pedestrian lines outside the building, illegal drug
activity, harassment of passersby, excessive littering, excessive loitering,
illegal parking, excessive loud noises, especially late at night or early in
the morning hours, lewd conduct or police detentions and arrests.
ii.
The medical marijuana business permit holder
shall make available to members who are dispensed medical marijuana a list of
the rules and regulations governing medical marijuana use and consumption
within the city and recommendations on sensible medical marijuana etiquette.
w)
Non-profit.
i.
A medical marijuana business shall operate on
a non-profit basis. A medical marijuana business shall not profit from the sale
or distribution of marijuana. Any monetary reimbursement that members provide
to the medical marijuana business should only be an amount necessary to cover
overhead costs and operating expenses. Retail sales of medical marijuana that
violate California law or this chapter are expressly prohibited.
ii.
Reasonable proof (as determined to the
satisfaction of the City CEO or his/her designee) of compliance with these
non-profit requirements shall be providing annually to the City CEO or his/her
designee in writing along with supporting documentation.
x)
Delivery of Medical Marijuana to Members
i.
All employees who provide delivery of medical
marijuana from a medical marijuana business to a member located outside the
medical marijuana business location must have a valid identification card at
all times with the employee while the delivery is being made.
ii.
All deliveries must be recorded by the
medical marijuana business and maintained in the regular records of the medical
marijuana business. These records shall include but not be limited to the
identity of the recipient, the amount delivered, the date of the delivery, the
address of the delivery, and the name of the employee making the delivery.
iii.
Upon receipt of a delivery outside of the
location of the medical marijuana business, a member must sign for the delivery
on a written identifiable receipt to be kept in the regular records of the
medical marijuana business.
iv.
All deliveries must leave the medical
marijuana business in sealed containers whose seals will not be broken until
receipt of the delivery by the member.
y)
Exemptions
The
regulations contained in this Chapter shall not apply to a medical marijuana
business engaged in the following uses: a clinic permitted pursuant to Chapter
1 of Division 2 of the Health and Safety Code; a health care facility permitted
pursuant to Chapter 2 of the Division 2 of the Health and Safety Code; a
residential care facility for persons with chronic life-threatening illness
permitted pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code;
a residential care facility for the elderly licensed pursuant to Chapter 3.2 of
Division 2 of the Health and Safety Code; a residential hospice or a home
health agency permitted pursuant to Chapter 8 of Division 2 of the Health and
Safety Code, as long as such use complies strictly with applicable law regulating
such use and the location of such use, including, but not limited to, Health
and Safety Code sections 11362.5 and 11362.7 et. seq.
Section
9-501. Medical Marijuana Cultivation Standards and Quality Control
A medical marijuana
cultivation site shall operate in conformance with the following standards, and
such standards shall be deemed to be part of the conditions of approval on the
medical marijuana cultivation site’s permit to ensure that its operation is in
compliance with California law and this Code, and to mitigate any potential
adverse impacts of the cultivation of medical marijuana on the public health,
safety or welfare.
To this end the City CEO or
his/her designee is authorized (but not required) to establish a City Office of
Cultivation Standards and Quality Control whose purpose will be to conduct regular
inspection of cultivation practices and procedures at medical marijuana
cultivation sites, as well as to test medical marijuana cultivated at medical
marijuana cultivation sites.
a)
Cultivation Standards.
The City
Office of Cultivation Standards and Quality Control may:
i.
Establish model guidelines for recommended
best practices and procedures for the cultivation of medical marijuana.
ii.
Determine whether the model guidelines are
being adhered to by a permit holder for a medical marijuana cultivation site,
and make available to the public the results.
b)
Quality Control.
The
City Office of Cultivation Standards and Quality Control may:
i.
Establish testing standards for the quality
of medical marijuana dispensed at medical marijuana businesses.
iii.
Apply the testing standards to medical
marijuana dispensed at medical marijuana businesses, and make available to the
public the results.
c)
Labeling.
The
City Office of Cultivation Standards and Quality Control may establish labeling
standards for all medical marijuana products consistent with both the results
of inspections and testing pursuant to this section as well as deemed
appropriate and necessary by the City CEO or his/her designee.
d)
Pesticides and Contaminants.
i.
Representative samples of all strains of
medical marijuana distributed by a medical marijuana business shall be analyzed
by the medical marijuana business or an independent laboratory (if and when
such is available) to ensure it is free of harmful pesticides and other
contaminants regulated by local, state or federal regulatory statutory
standards.
ii.
Any medical marijuana from which the
representative sample tested positive for a harmful pesticide or other
contaminant at a level that exceeds the local, state or federal regulatory or
statutory standards shall be destroyed forthwith.
iii.
The City Office of Cultivation Standards and
Quality Control shall have the authority to enforce this section.
Section
9-502. Fees
a)
Fees.
i.
An application fee set by resolution of the city
council shall be required for formal processing of every application made under
this chapter.
ii.
The City Council is authorized to pass
resolutions to recover any and all fees and costs incurred by the implementation
of this chapter through an appropriate fee recovery mechanism to be imposed
upon medical marijuana businesses and their operations.
b)
State Board of Equalization Seller’s Permit
Required.
The
State Board of Equalization has determined that medical marijuana transactions
are subject to sales tax, regardless of whether the individual or group makes a
profit, and those engaging in transactions involving medical marijuana must
obtain a Seller's Permit from the State Board of Equalization. Such permit shall
be conspicuously displayed at the Medical Marijuana Business. Failure to
maintain the Seller's Permit is grounds for revocation of a medical marijuana
dispensary permit and/or medical marijuana cultivation site permit.
Section
9-503. Location Restrictions
a)
Medical marijuana businesses shall not be
located within one thousand feet of a public or private school, public library
or youth center (serving youth ages eighteen (18) and under).
b)
Medical marijuana businesses shall not be
located within two hundred (200’) feet of a residential zone except pursuant to
the issuance of a minor conditional use permit as determined by the director of
development services.
c)
Medical marijuana businesses may only be located
in commercial, manufacturing or industrial zones as designated in Row 31a, Table
13-30, of Section 13-30 of chapter 4 of Title 13 of the Costa Mesa Municipal
Code.
d)
No medical marijuana business can be located within
one thousand (1000’) feet of any other medical marijuana business, irrespective
of ownership.
Section
9-504. Suspension and Revocation.
The
City CEO or his/her designee is authorized to suspend and/or revoke any and all
permits issued pursuant to this chapter upon the determination through written
findings of a failure to comply with any provision of this chapter, any
condition of approval, or any agreement or covenant as required pursuant to
this chapter. The City CEO or his/her designee may revoke a
medical marijuana regulatory permit if any of the following, singularly or in
combination, occur:
a)
The City CEO or his/her designee determines
that the medical marijuana dispensary or cultivation site has failed to comply
with any aspect of this chapter, any condition or approval, or any agreement or
covenant as required pursuant to this chapter; or
b)
Operations cease for more than 180 calendar
days (including during any change of ownership, if applicable); or
c)
Ownership is changed without securing a new regulatory
permit; or
d)
The medical marijuana dispensary and/or
cultivation site fails to maintain required security camera recordings; or
e)
The medical marijuana dispensary and/or
cultivation site fails to allow inspection of the security recordings, the
activity logs, or of the premise by authorized city officials.
Section
9-505. Violations and Penalties.
Any person, whether as principal, employee, agent,
partner, director, officer, stockholder, or trustee or otherwise, violating or
causing the violation of any of the provisions of this chapter shall be guilty
of a misdemeanor, and any conviction thereof shall be punishable by a fine of
not more than one thousand dollars ($1,000.00) or by imprisonment for not more
than six (6) months, or by both such fine and imprisonment. Any violation of
the provisions of this chapter shall constitute a separate offense for each and
every day during which such violation is committed or continued.
Section
9-506. Public Nuisance.
In addition to the penalties
set forth in this chapter, any medical marijuana business which is operating in
violation of any provisions of this chapter is hereby declared to constitute a
public nuisance and, as such, may be abated or enjoined from further operation.
All costs to abate such public nuisance, including attorneys' fees and court
costs, shall be paid by the permit holder of the medical marijuana business
pursuant to Chapter III (Public Nuisance Abatement) of Title 20 (Property
Maintenance) of the Costa Mesa Municipal Code. Any appeals to a determination
that a medical marijuana business is operating as a public nuisance shall be pursuant
to the provisions in the same chapter.
Section
9-507. Appeals
Any decision regarding
approval, conditional approval, denial, suspension or revocation may be
appealed to the city council in accordance with the provisions of Chapter IX of
the Costa Mesa Municipal Code.
Section
9-508. Prohibited Operations and Nonconforming Use
All medical marijuana
businesses in violation of Health and Safety Code Section 11362.7 et seq. and
11362.5 et seq., this chapter, or any other applicable State law are expressly
prohibited.
It is unlawful for any
medical marijuana business in the city, or any agent, employee or
representative of such medical marijuana business, to permit any breach of
peace therein or any disturbance of public order or decorum by any tumultuous,
riotous or disorderly conduct on the premises of the medical marijuana
business, or to violate any State law, or this chapter.
No use which purports to
have distributed marijuana prior to the enactment of this chapter shall be
deemed to have been a legally established use under the provisions of the Costa
Mesa Zoning Code, the Costa Mesa Municipal Code, or any other local ordinance,
rule or regulation, and such use shall not be entitled to claim legal
nonconforming status.
Section
9-509. Severability
If any section, subsection,
subdivision, sentence, clause, phrase, word, or portion of this Ordinance is,
for any reason, held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of
the remaining portions of this Ordinance. The People of the City of Costa Mesa
hereby declare that they would have adopted this Ordinance and each section,
subsection, subdivision, sentence, clause, phrase, word, or portion thereof,
irrespective of the fact that any one or more sections, subsections,
subdivisions, sentences, clauses, phrases, words or portions thereof be
declared invalid or unconstitutional.
Section
9-510. Amendment
Provisions of this chapter
may be amended to further their purposes by ordinance passed by a majority vote
of the city council.
Section 9-511.
Consistency with Statewide Regulation of Marijuana
This chapter shall be read consistent with any statewide regulation
of medical marijuana that is promulgated by the California legislature or by
voter approval in the future. In the event statewide regulation is passed
pursuant to the decriminalization or legalization of marijuana for recreational
use, this chapter shall govern the conduct of those business allowed to
distribute marijuana under such provisions to the fullest extent possible
consistent with such statewide regulation.
Section
2. Section 13-16 (Enforcement) of Article 4 (Enforcement)
of Chapter I (General) of Title 13 (Planning, Zoning and Development) is hereby
repealed and replaced with the following:
Sec.
13-16. Enforcement.
(a)
Criminal prosecution. Any person, whether as
principal, agent, or employee, violating the terms of this zoning code may be
prosecuted as provided in section 1-33 of this Municipal Code.
(b)
Criminal citation. For the purposes of this
zoning code, a violation of the terms of this zoning code may be cited as
either an infraction or misdemeanor pursuant to State Government Code Sections
36900 and 36901 and as provided in section 1-33 of this Municipal Code.
(c)
Civil action. As an alternative to
prosecution or citation, or as an additional action, the city attorney may, at
the request of the development services director, institute an action in any
court of competent jurisdiction to restrain, enjoin, or abate the condition(s)
or activity(ies) found to be in violation of the provisions of this zoning
code.
(d)
Nuisance. Any use, structure, or property
that is altered, enlarged, erected, established, maintained, moved, or operated
contrary to the provisions of this title or any condition of approval, is
hereby declared to be unlawful and a public nuisance and may be abated by the
city through civil proceedings by means of a restraining order, preliminary or
permanent injunction, or in any other manner provided by law for the abatement
of such nuisances.
Section
3. Line 31a of Table 13-30 (City of Costa Mesa Land Use
Matrix) of Chapter IV (Citywide Landuse Matrix) of Title 13 (Planning, Zoning
and Development) is hereby repealed and replaced with the following:
