The City of Imperial Beach has been presented with the problem and a solution. The sample ordinance below has been provided to the Imperial Beach City Council and city staff on two occasions.
New City Ordinance for
COLLECTIVES & COOPERATIVES
Purposes and Intent.
The ordinance codified in this article, in compliance with California Health and Safety Code Sections 11362.5 and 11362.7, et seq., 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 state law. Under state law, only qualified patients, persons with identification cards and primary caregivers may associate collectively or cooperatively to cultivate medical marijuana. Medical marijuana collectives and cooperatives, herein also called “collectives,” shall otherwise comply with all provisions of the zoning ordinance, and the California Health and Safety Code. Nothing in this ordinance purports to permit activities that are otherwise illegal under state or local law.
Furthermore, the ordinance seeks to implement the provisions of California Health and Safety Code Sections 11362.5 and 11362.7, et seq., as described by the California Attorney General in “Guidelines For The Security And Non-diversion Of Marijuana Grown For Medical Use,” published August 2008, which states in Section IV(C)(1) that “a properly organized and operated collective of cooperative that dispenses medical marijuana through a storefront may be lawful under California law,” provided the facility substantially complies with the guidelines.
The following phrases, when used in this chapter, shall be construed as defined in California Health and Safety Code Sections 11362.5 and 11362.7:
“Person with an identification card;”
“Primary caregiver;” and
The following phrases, when used in this chapter, shall be construed as defined below:
“Medical marijuana dispensing collective” or “Collective”. Qualified patients, persons with identification cards and designated primary caregivers of qualified patients and persons with identification cards who associate, as an incorporated or unincorporated association, at a particular location within the City of Imperial Beach in order to collectively or cooperatively provide medical cannabis for use exclusively by their registered members, in strict accordance with California Health and Safety Code Sections 11362.5 and 11362.7, et seq.
Conditional Use Permit Required.
A Conditional Use Permit shall be required to establish or operate a medical marijuana dispensing collective in compliance with the requirements of this section when located in the Designated Commercial Use Zones of the City of Imperial Beach.
A disclaimer shall be put on medical cannabis dispensing collective zoning application forms that shall include the following:
a. A warning that the collective operators and their employees may be subject to prosecution under federal law; and
b. A disclaimer that the City will not accept any legal liability in the connection with any approval and/or subsequent operation of a collective.
In addition to the findings required to establish compliance with the provisions above, approval of a conditional use permit for a medical cannabis dispensary shall require the following findings:
1. That the requested use at the proposed location will not adversely affect the use of any property used for a school K-12;
2. That the exterior appearance of the structure will be consistent with the exterior appearance of structures already constructed or under constructing within the immediate neighborhood, so as to prevent blight or deterioration, or substantial diminishment or impairment of property values within the neighborhood.
The location at which a medical marijuana dispensing collective distributes medical marijuana must meet the following requirements:
No medical marijuana dispensing collective shall be located within a 500-foot radius of schools K-12, playgrounds, places of religious worship, or within 1,000-foot radius of other medical marijuana dispensing collective(s);
(1) Signs displayed on the exterior of the property shall conform to current city code(s) and ordinance(s):
(2) The location shall be monitored at all times by closed circuit video recording system for security purposes. The camera and recording system must be of adequate quality, color rendition and resolution to allow the ready identification of any individual committing a crime anywhere on the site;
(3) The location shall have a centrally-monitored alarm system;
(4) Interior building lighting, exterior building lighting and parking area lighting must be in compliance with current city code(s) & ordinance(s);
(5) Absolutely no cultivated marijuana or dried marijuana product may be visible from the building exterior;
(6) Medical cannabis may be provided by a medical marijuana dispensing collective in an edible form, provided that the edibles meet all applicable San Diego County Health Department requirements. In addition, any beverage or edible produced, provided or sold at the collective containing cannabis shall be so identified, as part of the packaging, with a prominent and clearly legible warning advising that the product contains cannabis and that is it to be consumed only with a physician’s recommendation;
(7) No persons under the age of eighteen shall be allowed on site, unless the individual is a qualified patient or person with an identification card and accompanied by his or her licensed attending physician, parent or documented legal guardian;
(8) At any given time, no medical marijuana dispensing collective may possess more marijuana or marijuana plants than would reasonably meet the immediate needs of its registered patient members, as described by the California Attorney General in “Guidelines For The Security And Non-diversion Of Marijuana Grown For Medical Use,” published August 2008.;
(9) A sign shall be posted in a conspicuous location inside the structure advising: “The diversion of marijuana for non-medical purposes is a violation of State law. The use of marijuana may impair a person’s ability to drive a motor vehicle or operate heavy machinery. Loitering at the location of a medical marijuana dispensing collective for an illegal purpose is prohibited by California Penal Code Section 647(h)”;
(10) No medical marijuana dispensing collective may provide medical marijuana to any persons other than qualified patients or persons with identification cards and designated primary caregivers who are registered members of the collective and whose status to possess marijuana pursuant to California law has been verified. No medical marijuana provided to a primary caregiver may be supplied to any person(s) other than the primary caregiver’s qualified patient(s) or person(s) with an identification card;
(11) No cultivation of medical marijuana shall be visible with the naked eye from any public or other private property. No outdoor cultivation shall occur at a location unless it is secured from public access by means of a locked gate and any other security measures necessary to prevent unauthorized entry;
(12) No medical marijuana dispensing collective shall cause or permit the establishment or maintenance of the sale or dispensing of alcoholic beverages for consumption on the premises or off-site of the premises;
(13) No dried medical marijuana shall be stored in structures without at least four walls and a roof, or stored in an unlocked vault or safe, or other unsecured storage structure; nor shall any dried medical marijuana be stored in a safe or vault that is not bolted to the floor or structure of the facility; and
(14) Medical cannabis may be consumed on-site only as follows:
a. The medical marijuana dispensing collective is not located within a 1,000-foot radius of schools K-12, playgrounds, or places of religious worship.
b. The smoking or vaporizing of medical cannabis shall be allowed provided that appropriate seating, restrooms, drinking water, ventilation, air purification system, and patient supervision are provided in room or enclosed area separate from other collective service areas.
c. The maximum occupancy of the separate room or enclosed area shall meet local occupancy requirements.
d. The medical marijuana dispensing collective shall use an activated charcoal filter, or other device sufficient to eliminate all odors associated with medical cannabis use from adjoining businesses and public walkways. The fan used to move air through the filter shall have the capacity sufficient to ventilate the square footage of the separate room or enclosed area in which medical cannabis use is permitted.
(15) Medical marijuana dispensing collectives must verify that each member (1) has a valid and unexpired letter of recommendation for the use of medical cannabis written by a doctor licensed practice medicine in California; and (2) each member is a resident of the state of California. The collective may accept an unexpired medical marijuana identification card issued pursuant to California Health and Safety Code 11362.71 as proof of the member’s status as a legal patient, in lieu of personal contact with the recommending doctor or his or her agent.
(16) Medical marijuana dispensing collectives shall not distribute more than two (2) ounces of marijuana to any patient or his or her primary caregiver nor allow more than one (1) visit per day by a patient or his or her primary caregiver.
(17) Medical marijuana dispensing collective operators, employees, managers, members, or agents shall not sell, barter, give away, or furnish medicine to anyone who is not a qualified patient or primary caregiver, registered as a member of the collective, and entitled to possess marijuana under California law. All collective operators, employees, managers, members, or agents shall be qualified patients or a qualified patient’s designated primary caregiver.
(18) Medical marijuana dispensing collectives shall maintain accurate patient records necessary to demonstrate patient eligibility under the law for every collective member, including (1) a copy of a California driver’s license or Department of Motor Vehicle identification card, (2) a patient registration form, (3) a valid and unexpired letter of recommendation for the use of medical cannabis written by a doctor licensed practice medicine in California. All patient records shall be kept in a secure location and regarded as strictly confidential.
(19) Operating hours for medical marijuana dispensing collectives shall be between 8:00 AM and 10:00 PM daily, unless otherwise modified under the Conditional Use Permit required by this article.
(20) Medical marijuana dispensing collectives must have at least one security guard on duty during operating hours who possess a valid Guard Card form the California Department of Consumer Affairs.
The Imperial Beach of Building and Safety and the San Diego Sherriff Department may inspect every medical marijuana dispensing collective location at any reasonable time to ensure compliance with the provisions of this article and both Departments, within their respective jurisdictions, are authorized to enforce the provisions of this article.
If any section, sub-section, paragraph, sentence, or word of this Article is deemed to be invalid, the invalidity of such provision shall not affect the validity of any other sections, sub-sections, paragraphs, sentences, or words of this Article, or the application thereof; and to that end, the sections, sub-sections, paragraphs, sentences, and words of this Article shall be deemed severable.