Issue link: https://www.epageflip.net/i/153129
4B Daily News – Friday, August 16, 2013 LEGAL NOTICE ORDINANCE NO. 1980 AN ORDINANCE OF THE BOARD OF SUPERVISORS OF THE COUNTY OF TEHAMA TEHAMA AMENDING CHAPTER 9.06 OF THE TEHAMA COUNTY CODE PERTAINING TO MARIJUANA CULTIVATION THE BOARD OF SUPERVISORS OF THE COUNTY OF TEHAMA ORDAINS AS FOLLOWS: SECTION 1. Section 9.06.010 of the Tehama County Code is hereby repealed. SECTION 2. Section 9.06.010 is hereby added to the Tehama County Code to read: 9.06.010 Authority and Title. Pursuant to the authority granted by Article XI, section 7 of the California Constitution, Health and Safety Code section 11362.83, and Government Code sections 25845 and 53069.4, the Board of Supervisors does enact this Chapter, which shall be known and may be cited as the "Tehama County Marijuana Cultivation Ordinance." SECTION 3. Section 9.06.020 of the Tehama County Code is hereby repealed. y , marijuana. (H) Proposition 215 and Senate Bill 420 primarily address the criminal law, providing qualifying patients and primary caregivers with limited immunity from state criminal prosecution under certain identified statutes. Neither Proposition 215 nor Senate Bill 420, nor the Attorney General's August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use adopted pursuant to Senate Bill 420, provides comprehensive regulation of premises used for marijuana cultivation. The unregulated cultivation of marijuana in the unincorporated area of Tehama County can adversely affect the health, safety, and well-being of the County and its residents. Comprehensive regulation of premises used for marijuana cultivation is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards that may result from unregulated marijuana cultivation, and that are especially significant if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in one place. SECTION 4. Section 9.06.020 is hereby added to the Tehama (I) Cultivation of any amount of marijuana at locations or premCounty Code to read: ises within 1,000 feet of schools, 9.06.020 Findings and Purpose. school bus stops, school evacuThe Board of Supervisors of the ation sites, churches, parks, County of Tehama hereby finds child care centers, or youthoriented facilities creates and declares the following: unique risks that the marijuana (A) In 1996, the voters of the plants may be observed by State of California approved juveniles, and therefore be espeProposition 215 (codified as Cali- cially vulnerable to theft or recconsumption by fornia Health and Safety Code reational section 11362.5, and entitled juveniles. Further, the potential "The Compassionate Use Act of for criminal activities associated with marijuana cultivation in 1996"). such locations poses height(B) The intent of Proposition ened risks that juveniles will be was to enable persons who are involved or endangered. Therein need of marijuana for medical fore, cultivation of any amount purposes to use it without fear of marijuana in such locations of criminal prosecution under or premises is especially hazlimited, specified circumstan- ardous to public safety and welces. The Proposition further pro- fare, and to the protection of vides that "nothing in this sec- children and the person(s) cultition shall be construed to super- vating the marijuana plants. sede legislation prohibiting persons from engaging in conduct (J) As recognized by the AttorGeneral's August 2008 that endangers others, or to ney condone the diversion of mari- Guidelines for the Security and of Marijuana juana for non-medical purpos- Non-Diversion es." The ballot arguments sup- Grown for Medical Use, the cultivation or other concentration of porting Proposition 215 expressly acknowledged that "Proposi- marijuana in any location or tion 215 does not allow unlimit- premises without adequate seed quantities of marijuana to be curity increases the risk that surrounding homes or businessgrown anywhere." es may be negatively impacted (C) In 2004, the Legislature by nuisance activity such as loienacted Senate Bill 420 (codified tering or crime. as California Health and Safety Code sections 11362.7 et seq., (K) It is the purpose and intent and referred to as the "Medical of this Chapter to implement Marijuana Program") to clarify State law by providing a means the scope of Proposition 215, for regulating the cultivation of and to provide qualifying pa- medical marijuana in a manner tients and primary caregivers that is consistent with State law who collectively or cooperative- and which balances the needs ly cultivate marijuana for medi- of medical patients and their cal purposes with a limited de- caregivers and promotes the fense to certain specified State health, safety, and welfare of criminal statutes. Assembly Bill the residents and businesses 2650 (2010) and Assembly Bill within the unincorporated terri1300 (2011) amended the Medi- tory of the County of Tehama. cal Marijuana Program to ex- This Chapter is intended to be pressly recognize the authority consistent with Proposition 215 of counties and cities to and Senate Bill 420, and towards "[a]dopt local ordinances that that end, is not intended to proregulate the location, operation, hibit persons from individually, or establishment of a medical collectively, or cooperatively exmarijuana cooperative or collec- ercising any right otherwise tive" and to civilly and criminal- granted by State law. Rather, the intent and purpose of this ly enforce such ordinances. Chapter is to establish reasona(D) Health and Safety Code sec- ble regulations upon the manner tion 11362.83, both as originally in which marijuana may be cultienacted, and as amended by As- vated, including restrictions on sembly Bill 1300, further recog- the amount of marijuana that nize that counties and cities may be individually, collectively, may also adopt and enforce any or cooperatively cultivated in other ordinances that are con- any location or premises, in orsistent with the Medical Mari- der to protect the public health, safety, and welfare in Tehama juana Program. County. (E) Ordinance No. 1936, which established Tehama County's (L) The limited immunity from original marijuana cultivation specified state marijuana laws regulations, was upheld by the provided by the Compassionate California Court of Appeal in Use Act and Medical Marijuana Browne v. County of Tehama Program does not confer the (2013) 213 Cal.App.4th 704. The right to create or maintain a Court specifically held that public nuisance. By adopting the "[n]either the Compassionate regulations contained in this Use Act nor the Medical Marijua- Chapter, the County will achieve na Program grants . . . anyone . . a significant reduction in the . an unfettered right to cultivate aforementioned harms caused marijuana for medical purposes. or threatened by the unregulatAccordingly, the regulation of ed cultivation of marijuana in area of cultivation of medical marijuana the unincorporated does not conflict with either Tehama County. statute." Similarly, in City of Riverside v. Inland Empire Patients (M) The original provisions of Health and Wellness Center, Inc. Ordinance No. 1936 have proven (2013) 56 Cal.4th 729, the Califor- inadequate to control the negania Supreme Court concurred tive secondary impacts of unthat "[n]othing in the CUA or the regulated marijuana cultivation. MMP expressly or impliedly lim- Specifically: its the inherent authority of a local jurisdiction, by its own ordi- (i) The graduated plant limits, nances, to regulate the use of its based on parcel size, have made it difficult for many marijuana land . . ." growers to understand how (F) The federal Controlled Sub- many plants they are allowed, stances Act, 21 U.S.C. §§ 801 et and have proven problematic to seq., classifies marijuana as a administer and enforce. For exSchedule I Drug, which is de- ample, the original limits differfined as a drug or other sub- entiate between mature and imstance that has a high potential mature marijuana plants - leadfor abuse, that has no currently ing to wide-spread confusion previously immature accepted medical use in treat- when ment in the United States, and plants reach maturity. that has not been accepted as safe for use under medical su- (ii) The original enforcement pervision. The Federal Control- provisions, which were limited led Substances Act makes it un- to nuisance abatement, are not lawful, under federal law, for an adequate deterrent to violaany person to cultivate, manu- tion. Without a monetary or facture, distribute or dispense, criminal penalty, the only conseor possess with intent to manu- quence for violating the ordifacture, distribute or dispense, nance is removal of the offendmarijuana. The Federal Control- ing plants. Further, physical led Substances Act contains no abatement is costly, and cost reexemption for the cultivation, covery is slow and uncertain, manufacture, distribution, dis- limiting the number of sites that pensation, or possession of mar- may be addressed each year, and thus practically limiting the ijuana for medical purposes. effect of the ordinance. (G) The County's unique geographic and climatic conditions, The revised provisions conwhich include dense forested tained in this Chapter are inareas receiving substantial pre- tended to address the aforecipitation, along with the sparse mentioned concerns, and more population in many areas of the effectively control the harms County, provide conditions that caused by unregulated and are favorable to marijuana culti- noncompliant marijuana cultivavation. Marijuana growers can tion, while still accommodating achieve a high per-plant yield the needs of medical patients because of the County's favora- and their caregivers to the ble growing conditions. The fed- greatest extent practicable. eral Drug Enforcement Administration reports that various (N) While code enforcement in types of marijuana plants under Tehama County has historically various planting conditions may been complaint-driven, that has yield averages of 236 grams, or never been a precondition to the about one-half pound, to 846 enforcement of this Chapter. grams, or nearly two pounds. Further, the Board of SuperviBased on law enforcement sors recognizes that persons afseizures, yields in Tehama fected by code violations are County have tended to be at the frequently reluctant to file comhigher end of this range. The plaints, for fear of retaliation. "street value" of a single canna- Consequently, for purposes of bis plant is substantial. Pound clarity, no provision of this Code prices for domestically pro- shall be construed to require a duced high-grade cannabis sold formal or informal complaint as illegally within Northern Califor- a condition to enforcement of nia can reach $2,000 to $5,000. A this Chapter, or to prevent the single marijuana plant cultivat- enforcing officer from undertaked within the County can thus ing such enforcement on his or yield $4,000 or more in salable her own initiative. ij (O) It is the intention of the Board of Supervisors that the abatement provisions of Sections 9.06.050 through 9.06.160 and the administrative penalty provisions of Section 9.06.165 be the primary means of enforcement of this Chapter, and that prosecution under Section 9.06.230 be limited to those cases where the foregoing means are inadequate to obtain full compliance, as determined by the enforcing officer and District Attorney. (P) Nothing in this ordinance shall be construed to allow the use of marijuana for nonmedical purposes, or allow any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal under State or federal law. No provision of this Chapter deemed a defense or immunity to any action brought against any person by the Tehama County District Attorney, the Attorney General of State of California, or the United States of America. SECTION 5. Section 9.06.030 of the Tehama County Code is hereby repealed. SECTION 6. Section 9.06.030 is hereby added to the Tehama County Code to read: 9.06.030 Definitions. Except where the context otherwise requires, the following definitions shall govern the construction of this Chapter: (A) "Child Care Center" means any licensed child care center, daycare center, or childcare home, or any preschool. (B) "Church" means a structure or leased portion of a structure, which is used primarily for religious worship and related religious activities. (C) "Cultivation" means the planting, growing, harvesting, drying, processing, or storage of one or more marijuana plants or any part thereof in any location, indoor or outdoor, including from within a fully enclosed and secure building. (D) "Enforcing Officer" means the Health Officer or the Sheriff, or the authorized deputies or designees of either, or any person employed by the County of Tehama and appointed to the position of code enforcement officer, as established by Tehama County Resolution Number 1251991, each of whom is independently authorized to enforce this Chapter. (E) "Legal parcel" means any parcel of real property that may be separately sold in compliance with the Subdivision Map Act (Division 2 (commencing with Section 66410) of Title 7 of the Government Code). (F) "Marijuana plant" means any mature or immature marijuana plant, or any marijuana seedling. (G) "Premises" shall mean a single, legal parcel of property. Where contiguous legal parcels are under common ownership or control, such contiguous legal parcels shall be counted as a single "premises" for purposes of this Chapter. (H) "Primary caregiver" shall have the meaning set forth in Health and Safety Code sections 11362.5 and 11362.7 et seq. (I) "Qualified patient" shall have the meaning set forth in Health and Safety Code sections 11362.5 and 11362.7 et seq. (J) "School" means an institution of learning for minors, whether public or private, offering a regular course of instruction required by the California Education Code. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a home school, vocational or professional institution of higher education, including a community or junior college, college, or university. (K) "School Bus Stop" means any location designated in accordance with California Code of Regulations, Title 13, section 1238, to receive school buses, as defined in California Vehicle Code section 233, or school pupil activity buses, as defined in Vehicle Code section 546. (L) "School Evacuation Site" means any location designated by formal action of the governing body, Superintendent, or principal of any school as a location to which juveniles are to be evacuated to, or are to assemble at, in the event of an emergency or other incident at the school. (M) "Youth-oriented facility" means any facility that caters to or provides services primarily intended for minors, or the individuals who regularly patronize, congregate or assemble at the establishment are predominantly minors. SECTION 7. Section 9.06.040 of the Tehama County Code is hereby repealed. SECTION 8. Section 9.06.040 is hereby added to the Tehama County Code to read: 9.06.040 Nuisance Declared. A. The cultivation of more than twelve (12) marijuana plants, either indoors or outdoors, on any premises is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this Chapter. The foregoing limitation shall be imposed regardless of the number of qualified patients or primary caregivers residing at the premises or participating directly or indirectly in the cultivation. Further, this limitation shall be imposed notwithstanding any assertion that the person(s) cultivating marijuana are the primary caregiver(s) for qualified patients or that such person(s) are collectively or cooperatively cultivating marijuana. B. The cultivation of marijuana, in any amount or quantity, either indoors or outdoors, upon any premises located within one thousand (1,000) feet of any school, school bus stop, school evacuation site, church, park, child care center, or youthi d f ili i h b d , y oriented facility is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this Chapter. q marijuana cultivation within ten (10) calendar days after the date that said Notice was served. (i) Contain a statement that the owner or occupant may, within ten (10) calendar days after the date that said Notice was served, make a request in writing to the Clerk of the Board of Supervisors for a hearing to appeal the determination of the enforcing officer that the conditions existing constitute a public nuisance, or to show other cause why those conditions should not be abated in accord2. If the premises is twenty (20) ance with the provisions of this acres or greater in size, then Chapter. such distance shall be measured in a straight line from the (j) Contain a statement that, unbuilding in which the marijuana less the owner or occupant is cultivated, or, if the marijuana abates the unlawful marijuana is cultivated in an outdoor area, cultivation, or requests a hearfrom the fence required by Sub- ing before the Board of Supervidivision (c)(3), to the boundary sors, within the time prescribed line of the premises upon which in the Notice, the enforcing offithe school, school bus stop, cer will abate the nuisance. It school evacuation site, church, shall also state that the abatepark, child care center, or youth- ment costs, including administrative costs, may be made a oriented facility is located. special assessment added to C. The cultivation of marijuana, the County assessment roll and in any amount or quantity, ei- become a lien on the real propther indoors or outdoors, upon erty, or be placed on the unseany premises is hereby declared cured tax roll. to be unlawful and a public nuisance that may be abated in ac- (k) State the applicable hearing cordance with this Chapter, un- fee, if such a fee has been esless all of the following condi- tablished, and contain a statement that one who is legally intions are satisfied: digent may obtain a waiver of 1. The person(s) owning, leas- the hearing fee as provided in ing, occupying, or having charge this Chapter. or possession of any premises have registered the premises SECTION 11. Section 9.06.110 of with the Tehama County Health the Tehama County Code is Services Agency, and provided hereby repealed. all of the following current information and documentation to SECTION 12. Section 9.06.110 is hereby added to the Tehama the Agency: County Code to read: a. The name of each person, owning, leasing, occupying, or 9.06.110 Enforcement. having charge or possession of (a) Whenever the enforcing offithe premises; b. The name of each qualified cer becomes aware that an patient or primary caregiver owner or occupant has failed to who participates in the cultiva- abate any unlawful marijuana tion, either directly or by provid- cultivation within ten (10) days ing reimbursement for marijua- of the date of service of the Nona or the services provided in tice to Unlawful Marijuana Culticonjunction with the provision vation, unless timely appealed, of that marijuana; or of the date of the decision of c. A copy of the current valid the Board of Supervisors requirmedical recommendation or ing such abatement, the enforcState-issued medical marijuana ing officer may take one or more card for each qualified patient of the following actions: identified as required above, and for each qualified patient (1) Enter upon the property and for whom any person identified abate the nuisance by County as required above is the primary personnel, or by private concaregiver; tractor under the direction of d. The number of marijuana the enforcing officer. The enplants cultivated on the prem- forcing officer may apply to a ises; and court of competent jurisdiction e. Such other information and for a warrant authorizing entry documentation as the Agency upon the property for purposes determines is necessary to en- of undertaking the work, if necsure compliance with State law essary. If any part of the work is and this Chapter. to be accomplished by private contract, that contract shall be This information and documen- submitted to and approved by tation shall be received in confi- the Board of Supervisors prior to dence, and shall be used or dis- commencement of work. Nothclosed only for purposes of ad- ing herein shall be construed to ministration or enforcement of require that any private conthis Chapter or State law, or as tract under this Code be awardotherwise required by law. ed through competitive bidding procedures where such proceThe Board of Supervisors may, dures are not required by the by Resolution, establish a fee for general laws of the State of Calisuch registration in accordance fornia; and/or with all applicable legal requirements. (2) Request that the County Counsel commence a civil action 2. If the person(s) cultivating to redress, enjoin, and abate the marijuana on any legal parcel public nuisance. is/are not the legal owner(s) of the parcel, such person(s) shall SECTION 13. Section 9.06.165 is submit a notarized letter from hereby added to the Tehama the legal owner(s) consenting to County Code to read: the cultivation of marijuana on the parcel. This letter shall be 9.06.165 - Administrative Civil examined by Agency, and shall Penalties. then be returned to the submit- A. In addition to any other remeter. The Agency shall prescribe dy prescribed in this Chapter, forms for such letters. any nuisance as described in this Chapter may be subject to 3. All marijuana grown outside an administrative penalty of up of any building must be fully en- to one thousand dollars ($1,000) closed by an opaque fence at per day. The administrative penleast six (6) feet in height. The alty may be imposed via the adfence must be adequately se- ministrative process set forth in cure to prevent unauthorized this section, as provided in Goventry. Bushes, hedgerows, plas- ernment Code Section 53069.4, tic sheeting, or cloth material or may be imposed by the court (tarpaulins) shall not constitute if the violation requires court an adequate fence under this enforcement without an adminSubdivision. istrative process. 1. Except as provided in Subdivision (B)(2), such distance shall be measured in a straight line from the boundary line of the premises upon which marijuana is cultivated to the boundary line of the premises upon which the school, school bus stop, school evacuation site, church, park, child care center, or youthoriented facility is located. 4. Each building or outdoor area in which the marijuana is cultivated shall be set back at least 100 feet from all boundaries of the premises, unless the enforcing officer or the Board of Supervisors reduces or waives this requirement based upon a finding of unusual hardship. B. Acts, omissions, or conditions in violation of this Chapter that continue, exist, or occur on more than one day constitute separate violations on each day. Violations continuing, existing, or occurring on the service date, the effective date, and each day between the service date and the effective date are separate Such setback distance shall be violations. measured in a straight line from the building in which the mari- C. In the case of a continuing vijuana is cultivated, or, if the olation, if the violation does not marijuana is cultivated in an create an immediate danger to outdoor area, from the fence re- health or safety, the enforcing quired by Subdivision (c)(3), to officer or the court shall provide the boundary line of the prem- for a reasonable period of time, ises. not to exceed ten (10) days, for the person responsible for the D. No person owning, leasing, violation to correct or otherwise occupying, or having charge or remedy the violation prior to the possession of any premises imposition of administrative within the County shall cause, penalties. allow, suffer, or permit such premises to be used for the out- D. In determining the amount of door or indoor cultivation of the administrative penalty, the marijuana plants in violation of enforcing officer, or the court if this Chapter. the violation requires court enforcement without an adminisSECTION 9. Section 9.06.060 of trative process, shall take into the Tehama County Code is consideration the nature, cirhereby repealed. cumstances, extent, and gravity of the violation or violations, SECTION 10. Section 9.06.060 is any prior history of violations, hereby added to the Tehama the degree of culpability, ecoCounty Code to read: nomic savings, if any resulting from the violation, and any oth9.06.060 Contents of Notice . The er matters justice may require. Notice set forth in section 9.06.050 shall be in writing and E. The enforcing officer may shall: commence the administrative process by issuance of a Notice (a) Identify the owner(s) of the of Violation and Proposed Adproperty upon which the nui- ministrative Penalty, which shall sance exists, as named in the state the amount of the prorecords of the county assessor, posed administrative penalty and identify the occupant(s), if and the reasons therefore. The other than the owner(s), and if Notice of Violation and Proknown or reasonably identifia- posed Administrative Penalty ble. may be combined with a Notice to Abate Unlawful Marijuana (b) Describe the location of Cultivation issued pursuant to such property by its commonly Section 9.06.050. The Notice shall used street address, giving the be served by certified mail adname or number of the street, dressed to all of the following: road or highway and the num- (i) the owner of the property on ber, if any, of the property. which the violation exists, at the address shown on the last (c) Identify such property by equalized assessment roll or as reference to the assessor's par- otherwise known to the enforccel number. ing officer; (ii) anyone known to the enforcing officer to be in (d) Contain a statement that possession of the property subunlawful marijuana cultivation ject to the Notice, at the street exists on the premises and that address of the property; and (iii) it has been determined by the any other person known to the officer who has enforcing officer to be a public enforcing nuisance described in this Chap- caused, permitted, maintained, conducted, or otherwise sufter. fered or allowed the violation to (e) Describe the unlawful mari- exist. The failure to serve any juana cultivation that exists and person described in this subsection shall not affect the validity the actions required to abate it. of service or the validity of any (h) Contain a statement that penalties imposed upon any the owner or occupant is re- other person. The Notice shall quired to abate the unlawful inform the recipient of their i h h i b f ij l i i i hi Legal continued on page 5B