HomeMy WebLinkAbout10/18/2011 13 Medical Marijuana; Presentation of Draft Legislation BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 1
For Meeting of October 18, 2011
ITEM TITLE: Presentation of Draft Legislation re: Medical Marijuana, and request that such
material be referred to Planning Commission for review and public hearing.
SUBMITTED BY: Jeff Cutter, City Attorney
CONTACT PERSON / TELEPHONE: Mark Kunkler, Senior Assistant City Attorney, 575 -3552
SUMMARY EXPLANATION: Pursuant to the terms of the ordinance imposing a six -month
moratorium on medical marijuana community gardens and dispensaries, the City Manager
was charged (a) to develop comprehensive legislation pertaining to the medical use of
marijuana within the City of Yakima; (b) to confer with citizens and advisory commissions
regarding such legislation; and (c) to present recommended legislation regarding such matters
to the City Council for its consideration. With the submission of these materials, City staff
requests that the City Council refer the draft legislation and these issues to the Planning
Commission for review and public hearing, as set forth in the moratorium ordinance and in
conformity with land use procedures. At the conclusion of such review and public hearing, the
Planning Commission will present the City Council with its recommendations.
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Resolution Ordinance Other (Specify) Draft Legislation, Memoranda
Contract Mail to (name and address):
Phone:
Funding Source
APPROVED FOR SUBMITTAL: //Ai , i vA, Cit Manager
STAFF RECOMMENDATION: Refer to Planning Commission for review, public hearing, and
recommendation.
BOARD /COMMISSION RECOMMENDATION: The Draft Legislation was presented to the
Council Neighborhood Development and Economic Development Committees on October 5,
2011, with the understanding that the issue would be presented to the full Council at its
October 18, 2011 Council meeting.
COUNCIL ACTION:
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CITY OF YAKIMA
LEGAL
DEPARTMENT
)0 South Third Stiet, Yakim, Washington 98901 (509)575-6030 Fax M9)575-6160
MEMORANDUM
October 10, 2011
TO: Honorable Mayor and City Council
Donald B. Cooper, City Manager
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Medical Marijuana — Referral to Planning Commission
When the medical marijuana moratorium was adopted on July 19, 2011, one of the
directives was that the City Manager should direct the development of comprehensive
regulations concerning medical marijuana, and to "confer with community members and
® City advisory commissions as appropriate; and to present recommended legislation
addressing such issues to the City Council for consideration and action." Ordinance
No. 2011 -34, Section 5.
Attached to this memorandum is a copy of draft legislation (and an accompanying
memorandum) that was presented to the Council Neighborhood Development
Committee and Council Economic Development Committee on October 5, 2011. It was
noted during the presentation of these materials to the Committees that the matter
would be presented to the full City Council at its regular meeting of October 18, 2011.
This material is brought to the full City Council with a request that the draft legislation be
referred to the City of Yakima Planning Commission for further discussion and review.
The Planning Commission will be asked to schedule a public hearing (or hearings) in
order to receive comment from the public. At the conclusion of such review and
hearings, the Planning Commission will submit its findings and recommendation to the
City Council for final review and action.
The term of the moratorium is scheduled to expire midnight on Tuesday, January 17,
2011. A public hearing before the Planning Commission is anticipated to occur in
November, thus leaving sufficient time to conduct the Planning Commission's review
and preparation of a recommendation to the City Council well before the expiration of
the moratorium.
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CITY OF YAKIMA
LEGAL
DEPARTNIENT
200 South Third Street, Yakima, Washington 98901 (509)575 -6030 Fax (509)575-6160
MEMORANDUM
September 30, 2011
TO: Council Neighborhood Development Committee
Council Economic Development Committee
Don Cooper, City Manager
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Update on Medical Marijuana Ordinance Options
Here is a brief synopsis of staff's recommended approach regarding medical use of •
cannabis and Community Gardens.
• The Moratorium prohibited establishment of Dispensaries and Community
Gardens; The Moratorium was crafted in such a way as to allow qualifying
individuals to continue their individual use of medical marijuana — provided
such individuals comply with existing state laws governing such use.
• The proposed Ordinance has two key components: (a) an amendment to the
zoning code that states that "No use that is illegal under local, state or federal
law shall be allowed in any zone within the city ;" and (b) an amendment
creating a new section of the zoning code that regulates Community Gardens
(and states that Dispensaries are illegal). It should be emphasized that the
proposed ordinance serves to regulate Community Gardens only on a zoning
"land use" basis. Individual qualifying patients would not be regulated (except
to the extent that they "combine" two or more qualifying patients on one
parcel — thus creating a Community Garden).
• Under the Ordinance (and current prohibitions on marijuana under federal
law) if a request is made to locate a Community Garden in any zone of the
City, the response will be that such use remains illegal under federal law and
is not allowed in any zone of the City. This protects the City and City staff
from possible prosecution for aiding and abetting violation of federal law.
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Memorandum to Council Committees — Medical Marijuana
• • At such time that medical use of marijuana is made lawful under both state
and federal law, then the new provisions implementing land use controls for
Community Gardens will apply.
• Adopting this two -step approach enables us to (a) comply with federal law,
and (b) honor the requirements under state moratorium statutes to develop a
comprehensive regulatory framework for dealing with Community Gardens.
In short, we have developed and adopted a regulatory ordinance that will
come into effect at such time that federal law is changed to allow medical use
of cannabis.
• Adopting the proposed Ordinance allows the City flexibility to further amend if
changes in federal or state law require an amendment.
• The focus of the Ordinance is on zoning or "land use" controls. Individual use
by "qualifying patients" does not constitute a "land use." It constitutes
individual use of a type of "medicine." However, a Community Garden is a
type of "production facility" subject to traditional land use regulation and
controls. Enforcement of laws pertaining to individual qualifying patients will
be in accordance with existing police law enforcement procedures.
Enforcement of land use controls for Community Gardens would be under the
zoning codes of the City. These would include normal land use and code
• enforcement, possible appeals, use of injunctions if necessary, and possible
judicial reviews under the Land Use Petition Act (LUPA).
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
ORDINANCE NO. 2011-
AN ORDINANCE amending Title 15 of the Yakima Municipal Code to
add new Section 15.01.035 prohibiting illegal uses,
and adding new Section 15.09.300 relating to Medical
Marijuana Facilities and Collective Gardens.
WHEREAS, in 1998, the voters of the State of Washington approved
Initiative Measure No. 692, now codified as Chapter 69.51A RCW, entitled the
Medical Use of Marijuana Act, which created an affirmative defense to state
criminal liability for seriously ill persons who are in need of medical marijuana for
specified medical purposes and who obtain and use medical marijuana under
limited, specified circumstances; and
WHEREAS, the legislature adopted E2SSB 5073, with certain provisions
vetoed by the governor, which became effective July 22, 2011, which enacted
provisions authorizing establishment and operation of "collective gardens" for
medical marijuana purposes; and
WHEREAS, Chapter 69.51A RCW, as amended by E2SSB 5073,
recognizes the authority and ability of municipalities to regulate medical
marijuana within their jurisdictions and to adopt comprehensive land use
regulations and licensing regulations concerning the establishment and operation
® of medical marijuana uses and facilities within such jurisdictions; and
WHEREAS, Congress passed the Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub.L. No. 91 -513, 84 Stat. 1236, to create
a comprehensive drug enforcement regime it called the Controlled Substances
Act, 21 U.S.C. § 801 -971. Under the Controlled Substances Act (also "CSA "),
Congress established five "schedules" of controlled substances. Controlled
substances are placed in specific schedules based upon their potential for abuse,
their accepted medical use in treatment, and the physical and psychological
consequences of abuse of the substance. See 21 U.S.C. § 812(b); and
WHEREAS, marijuana is currently listed as a "Schedule I" controlled
substance, 21 U.S.C. § 812(c), Schedule I(c)(10). For a substance to be
designated a Schedule I controlled substance, it must be found: (1) that the
substance "has a high potential for abuse "; (2) that the substance "has no
currently accepted medical use in treatment in the United States "; and (3) that
"[t]here is a lack of accepted safety for use of the drug or other substance under
medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets
forth procedures by which the schedules may be modified. See 21 U.S.C. §
811(a); and
WHEREAS, under the Controlled Substances Act, it is unlawful to
knowingly or intentionally "manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled substance," except as
otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a
• controlled substance, except as authorized under the Controlled Substances Act,
is also unlawful; and
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
WHEREAS, the United States Supreme Court has held in Gonzales v.
Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005). that Congress was
within its rights and powers under the Commerce Clause to regulate marijuana
as a Schedule I controlled substance pursuant to the Controlled Substances Act,
and that, under the Supremacy Clause of the U.S. Constitution, the federal
Controlled Substances Act will prevail over any conflicting state law; and
WHEREAS, the City Council of the City of Yakima finds and determines
that Title 15 of the Yakima Municipal Code should be amended to add new
section 15.01.035 providing that no use that is illegal under local, state or federal
law shall be allowed in any zone within the city, and that new section 15.07.300
be adopted to provide that, in the event the medical use of cannabis (marijuana)
is deemed lawful under applicable state and federal law, then the provisions of
new section 15.09.300 shall apply; and
WHEREAS, the City Council finds, and determines that such amendments
are in the best interests of residents of the City of Yakima and will promote the
general health, safety and welfare,
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Chapter 15.01 of the Yakima Municipal Code is hereby amended to
add new section 15.01.035 which provides as follows:
15.01.035 Illegal Uses Prohibited. •
No use that is illegal under local, state or federal law shall be allowed in
any zone within the city.
Section 2. Chapter 15.09 of the City of Yakima Municipal Code is hereby
amended to add new section 15.09.300 to read as follows:
15.09.300 Medical Marijuana Facilities — Collective Gardens.
A. Applicability. The standards and criteria established in this section
apply to any site, facility, location, entity, person, cooperative, or collective in the
City of Yakima that distributes, dispenses, stores, sells, exchanges, processes,
delivers, gives away, or cultivates marijuana (Cannabis) for medical purposes to
qualified patients, designated providers, health care providers, patients' primary
caregivers, or physicians, pursuant to Chapter 69.51A RCW or any State of
Washington laws or regulations adopted in furtherance thereof. Nothing in this
section shall be interpreted to conflict with provisions of Chapter 69.51A RCW.
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
B. Definitions.
The following terms have the following meanings:
1. "Cannabis" means all parts of the plant Cannabis, whether growing or
not; the seeds thereof; the resin extracted from any part of the plant;
and every compound, manufacture, salt, derivative, mixture, or
preparation of the plant, its seeds, or resin. For the purposes of . this
chapter, "cannabis" does not include the mature stalks of the plant,
fiber produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, derivative, mixture, or
preparation of the mature stalks, except the resin extracted therefrom,
fiber, oil, or cake, or the sterilized seed of the plant which is incapable
of germination. The term "cannabis" includes cannabis products and
useable cannabis. The term "cannabis" is synonymous with
"marijuana" as used in this chapter.
2. "Cannabis products " means products that contain cannabis or
cannabis extracts, have a measurable THC concentration greater than
three- tenths of one percent, and are intended for human consumption
or application, including, but not limited to, edible products, tinctures,
and lotions. The term "cannabis products" does not include useable
cannabis. The definition of "cannabis products" as a measurement of
® THC concentration only applies to the provisions of this chapter and
shall not be considered applicable to any criminal laws related to
marijuana or cannabis.
3. "Church" means a structure or leased portion of a structure, which is
used primarily for religious worship and related religious activities.
4. "City" means City of Yakima, Washington.
5. "Collective Garden" means those gardens authorized under Section
403 of E2SSB 5073, which means no more than ten (10) qualifying
patients sharing responsibility for acquiring and supplying the
resources required to produce and process cannabis for medical use
such as, for example, a location for a collective garden; equipment,
supplies and labor necessary to plant, grow and harvest cannabis;
cannabis plants, seeds and cuttings; and equipment, supplies and
labor necessary for proper construction, plumbing, wiring and
ventilation of a garden of cannabis plants. A Collective Garden will
contain no more than fifteen (1'5) plants per qualifying patient member,
up to a maximum cumulative total of forty -five (45) plants, and will
contain no more than twenty -four (24) ounces of useable cannabis per
qualifying patient member, up to a maximum cumulative total of
seventy -two (72) ounces of useable cannabis.
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
6. "Designated provider" means a person who:
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(a) Is eighteen years of age or older;
(b) Has been designated in a written document signed and dated by a
qualifying patient to serve as a designated provider under this
chapter and Chapter 69.51A RCW; and
(c) Is in compliance with the terms and conditions set forth in RCW
69.51A.040.
A qualifying patient may be the designated provider for another
qualifying patient and be in possession of both patients' cannabis at
the same time.
7. "Director" means the Director. of Community and Economic
Development of the city, or his or her designee.
8. "Dispensary" means any person, entity, site, location, facility, business,
cooperative, collective, whether for profit or not for profit, that
distributes, sells, dispenses, transmits, packages, measures, labels,
selects, processes, delivers, exchanges or gives away cannabis for
medicinal or other purposes, which does not qualify as a Collective
Garden or designated care provider /qualifying patient pursuant to this
chapter and Chapter 69.51A RCW.
• 9. "Indoors" means within a fully enclosed and secure structure that
complies with the Washington State Building Codes, as adopted by the
City of Yakima, that has a complete roof enclosure supported by
connecting walls extending from the ground to the roof, and a
foundation, slab or equivalent base to which the floor is securely
attached. The structure must be secure against unauthorized entry,
accessible only through one or more lockable doors, and constructed
of solid materials that cannot easily be broken through, such as 2 -inch
by 4 -inch or thicker studs overlain with 3/8 -inch or thicker plywood or
equivalent materials. A greenhouse structure may be allowed if it
complies with the Washington State Building Codes, as adopted by the
City of Yakima, and has a complete roof enclosure supported by
connecting walls extending from the ground to the roof, and a
foundation, slab or equivalent base to which the floor is securely
attached. The greenhouse . structure must be secure against
unauthorized entry, accessible only through one or more lockable
doors, and constructed of solid frame materials that cannot easily be
broken through, spaced and constructed to secure against
unauthorized entry.
10. "Legal parcel" means a parcel of land for which one legal title exists.
Where contiguous parcels are under common ownership or control,
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DRAFT — ORDINANCE — MEDICAL MARIJUANA - September 30, 2011
such legal parcels shall be counted as a single parcel for purpose of
this ordinance.
11. "Medical use of cannabis" means the manufacture, production,
processing, possession, transportation, delivery, ingestion, application
or administration of cannabis for the exclusive benefit of a qualifying
patient in the treatment of his or her terminal or debilitating medical
condition. The term "medical use of cannabis" is synonymous with
"medical marijuana."
12. "Member" means a qualifying patient authorized to participate in a
Collective Garden.
13. "Outdoors" means any location that is not "indoors" within a fully
enclosed and secure structure as defined herein.
14. "Person" means an individual or an entity.
15. "Personally identifiable information" means any information that
includes, but is not limited to, data that uniquely indentifies,
distinguishes or traces a person's identity, such as the person's name
or address, either alone or when combined with other sources, that
establish the person is a qualifying patient or designated provider.
16. "Plant" means an organism having at least three distinguishable and
distinct leaves, each leaf being at least three centimeters in diameter,
and a readily observable root formation consisting of at least two
separate and distinct roots, each being at least two centimeters in
length. Multiple stalks emanating from the same root ball or root
system shall be considered part of the same single plant.
17. "Process" means to handle or process cannabis in preparation for
medical use.
18. "Produce" means to plant, grow or harvest cannabis for medical use.
19. "Public place" includes streets and alleys of the incorporated cities and
towns; state or county or township highways or roads; buildings and
grounds used for school purposes; public dance halls and grounds
adjacent thereto; premises where goods and services are offered to
the public for retail sale; public buildings; public meeting halls, lobbies,
halls and dining rooms of hotels, restaurants, theaters, stores, garages
and filling stations which are open to and are generally used by the
public and to which the public is permitted to have unrestricted access;
• railroad trains, stages, buses, ferries and other public conveyance of
all kinds and character, and the depots, stops and waiting rooms used
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DRAFT— ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
in conjunction therewith which are open to unrestricted use and access •
by the public; publicly owned bathing beaches, parks, pools or
playgrounds; and all other paces of like or similar nature to which the
general public has unrestricted right of access, and which are generally
used by the public.
20. "Qualifying patient" means a person who:
(a) Is a patient of a health care professional;
(b) Has been diagnosed by that health care professional as having a
terminal or debilitating medical condition;
(c) Is a resident of the State of Washington at the time of such
diagnosis;
(d) Has been advised by that health care professional about the risks
and benefits of the medical use of cannabis;
(e) Has been advised by that health care professional that he or she
may benefit from the medical use of cannabis; and
(f) Is otherwise in compliance with the terms and conditions
established in Chapter 69.51A RCW.
The term "qualifying patient" does not include a person who is actively
being supervised for a criminal conviction be a corrections agency or
department that has determined that the terms of this chapter and Chapter
69.51A RCW are inconsistent with and contrary to his or her supervision
and all related processes and procedures related to that supervision.
21. "Residential treatment facility" means a facility providing for treatment
of drug and alcohol dependency.
22. "School" means an institution of learning for minors, whether public or
private, offering regular course of .instruction required by the
Washington Education Code, or any child or day care facility. 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 vocational or
professional institution of higher learning, including a community or
junior college or university.
23. "Terminal or debilitating medical condition" means:
(a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis,
epilepsy or other seizure disorder, or spasticity disorder; or
(b) Intractable pain, limited for the purposes of this chapter to mean
pain unrelieved by standard medical treatments and medications;
or
(c) Glaucoma, either acute or chronic, limited for the purposes of this
chapter to mean increased intraocular pressure unrelieved by
standard treatments and medications; or
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
(d) Crohn's disease with debilitating symptoms unrelieved by standard
treatments and medications; or
(e) Hepatitis C with debilitating • nausea or intractable pain unrelieved
by standard treatments and medications; or
(f) Diseases, including anorexia, which result in nausea, vomiting,
cachexia, appetite loss, cramping, seizures, muscle spasms or
spasticity, when these symptoms are unrelieved by standard
treatments or medications; or
(g) Any other medical condition duly approved by the Washington state
medical quality assurance commission in consultation with the
board of osteopathic medicine and surgery as directed in this
chapter.
24. "THC concentration" means percent of tetrahydrocannabinol content
per weight or volume of useable cannabis or cannabis product.
25. "Useable cannabis" means dried flowers of the Cannabis plant having
a THC concentration greater than three - tenths of one percent.
Useable cannabis excludes stems, stalks, leaves, seeds and roots.
For purposes of this subsection, "dried" means containing less than
fifteen percent moisture content by weight. The term "useable
cannabis" does not include cannabis products.
26. "Valid documentation" means:
(a) A statement signed and dated by a qualifying patient's health care
professional written on tamper- resistant paper, which states that, in
the health care professional's opinion, the patient may benefit from
the medical use of cannabis;
(b) Proof of identity such as a Washington state driver's license or
identicard, as defined in RCW 46.20.035; and
In the case of a designated provider, the signed and dated document
valid for one year from the date of signature executed by the qualifying
patient who has designated the provider.
27. "Youth oriented facility" means elementary school, middle school,
junior high school, high school, public park, and any establishment that
advertises in a manner that identifies the establishment as catering to
or providing services primarily intended for minors, or individuals who
regularly patronize, congregate or assemble at the establishment are
predominantly minors. This shall not include a day care or preschool
facility.
C. Dispensaries Prohibited.
No medical marijuana or cannabis dispensary shall be allowed or
permitted within the city.
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DRAFT – ORDINANCE — MEDICAL MARIJUANA – September 30, 2011
D. Collective Garden Permit Required.
Prior to initiating operations, and as a continuing prerequisite to
conducting operations, all responsible persons or the responsible entity wishing
to operate a Collective Garden shall apply for and receive from the Director of
Community and Economic Development a permit for operation of a Collective
Garden, on the terms and conditions set forth herein. This requires the
submission of a complete application (as described in subsection G herein) and
compliance with the following requirements:
E. Location and Distance Restrictions.
1. No Collective Garden shall be permitted outdoors;
2. Collective Gardens shall be subject to the limitations in
subsection (L) regarding location in proximity to any school, church, youth -
oriented facility, library, other Collective Garden, or residential treatment
facility;
3. No Collective Garden shall be located anywhere the
cannabis (marijuana) plants are visible from a public place.
F. Ownership and Limitation on Numbers.
No more than one Collective Garden may be located on a single parcel of
land, and the parcel must be owned by, or leased to one of the members of the
Collective Garden. All owners of record of the subject parcel, identified pursuant
•
to records of the Yakima County Auditor, shall provide to the city written
acknowledgement of use and approval of the parcel for a Collective Garden.
Such written approval(s) shall be submitted with the application for a Collective
Garden.
A qualifying patient shall not be a member of more than one Collective
Garden, and must be a member of one Collective Garden for at least thirty (30)
days before . transferring his or her membership to another Collective Garden.
Each Collective Garden must maintain records of its membership for no less than
three years. No person may be admitted for membership into a Collective
Garden as a qualified patient in the City of Yakima if they belong as a qualified
patient in another collective garden for medical marijuana in the State of
Washington.
No person under eighteen (18) years of age shall be a member of a Collective
Garden without written, verified authorization by a parent or legal guardian.
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
41/ G. Collective Garden Permit Application.
A complete application for a Collective Garden Permit shall consist of the
following:
1. The name, address and telephone number of each applicant for a
Collective Garden permit, and each owner of the parcel to be used as
the Collective Garden. The application shall be signed by the
applicant(s) and each owner of record, identified pursuant to records of
the Yakima County Auditor, of the parcel proposed for operation of the
Collective Garden;
2. The name, address and telephone number of each qualifying patient
participating in the Collective Garden and valid documentation as proof
of his or her qualifying status;
3. The name, address, and telephone number of a person designated as
contact person for the Collective Garden, to enable the city, including
but not limited to the city police department, to contact the Collective
Garden in the event of any problem associated with the Collective
Garden, and to enable the city to administer the provisions of this
section. •
4. A unique identifying number from the State of Washington Driver's
License or Identification card for each qualifying patient member of the
Collective Garden;
5. A written statement signed by each participating qualifying patient and
owner of record of the subject parcel, acknowledging that any permit
applied for or issued is pursuant to the laws of the State of Washington
and that such issuance by the City of Yakima, and any administration
of any permit issued by the City of Yakima pursuant to this chapter,
does not confer upon the members of the Collective Garden, or the
owner's of such parcel, immunity from prosecution under applicable
state or federal law;
6. Plan of operations describing how the Collective Garden will operate
consistent with the intent of state law and the provisions of this
chapter, including but not limited to:
a. Ensuring cannabis is not purchased or sold by the
Collective Garden, or any members thereof, in a manner that would
generate a profit.
b. Controls that will assure cannabis will be dispensed to
participating qualifying patients only.
c. Controls that will ensure access to the Collective Garden
premises is adequately monitored and restricted to pre - approved
participating qualifying patients.
7. The location of the parcel where the Collective Garden will be located,
by street address and tax parcel number.
8. The number of plants to be grown for each qualifying patient member
• of the Collective Garden.
9. A statement describing the proposed security measures for the facility;
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
10.Payment of the permit application fee of $250.00.
H. Action on Application for a Permit.
1. An application for a Permit shall be deemed complete when the
City receives the last submission of information or materials required in
compliance with this chapter. Upon notification that an application is
incomplete, the applicant shall be granted an extension of ten (10)
calendar days to submit all materials required to complete the application.
If the application remains incomplete in excess of ten (10) calendar days
following said notification, the application shall be deemed withdrawn and
a new application submittal shall be required.
2. The Director shall consider the following criteria in determining
whether to grant or deny a permit and /or renewal of a permit, and may
seek the review of other city departments, including but not limited to the
police department, to assist in such determination:
(a) That the proposed Collective Garden is consistent
with the Yakima Municipal Code, applicable federal and state laws,
this chapter, including the application submittal and operating
requirements herein.
(b) That the location is not identified as a Chronic
Nuisance Property pursuant to Chapter 11.45 of this code. (c)
That all required application materials have been provided
•
and /or the applicant has operated in a manner consistent with this
chapter.
(d) That all required application or annual renewal fees
have been paid in a timely manner.
(e) That the location is consistent with city zoning
standards and is not prohibited by the provisions of this chapter or
by any other local or applicable federal or state law, statute, rule or
regulation, and no significant nuisance issues or problems are
anticipated or result.
(f) That the applicant has not violated any local or
applicable federal or state law, statute, rule or regulation respecting
the distribution, possession or consumption of illegal drugs or
controlled substances.
(g) The applicant has not engaged in unlawful,
fraudulent, unfair, or deceptive business practices or acts.
(h) The applicant has not knowingly made a false
statement of material fact or has knowingly omitted to state a
material fact in any permit application, or has provided false,
inaccurate, or otherwise misleading information.
(i) The applicant, his /her agent, or any person exercising
managerial authority on behalf of the applicant has not committed
any act involving dishonesty, fraud, or deceit with intent to
substantially benefit himself or herself, or another, or substantially
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DRAFT — : ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
411 injure another, or illegal use, possession, distribution, or similar
action relating to illegal drugs or controlled substances.
Notwithstanding the above, an applicant shall not be denied solely
•
on the basis that the applicant has been convicted of a felony if the
applicant has obtained a .certificate of .rehabilitation under
Washington law or that the applicant has been convicted of a
misdemeanor if the applicant has met all applicable requirements of
rehabilitation pursuant to Washington law.
3. Within twenty -eight (28) days of completing the investigation,
the application shall be approved, conditionally approved, or denied. The
Director may impose conditions, restrictions, or require revisions to the
proposal to comply with this chapter. Written notice of the Director's
decision shall be mailed to the applicant by U.S. Mail.
4. If the Director denies or revokes a Permit pursuant to this
chapter, a new application for a Permit shall not be accepted from the
applicant whose permit has been revoked or denied, and no such Permit
shall be issued to such person for a period of three (3) years after the
action denying or revoking the Permit.
I. Contents, Posting and Changes in Status of Permits.
1. The Collective Garden Permit shall include, but not be limited to,
the following information: •
® • (a) A complete description of the entity authorized by the
permit;
(b) The name and address of the entity so permitted;
(c) The name and address of the principal of the entity,
who applied for the permit; and
(d) Any conditions upon which the permit is issued.
2. The permit shall be conspicuously posted indoors at the primary
entry to the location of the permitted site.
3. Permits shall be non - transferable. A Permittee shall not transfer
control of a Collective Garden to another person unless and until the
proposed new operator files an application for a Collective Garden Permit
with the Director in accordance with the provisions of this chapter, as
though he /she were applying for the initial permit. Such application shall
be accompanied by a statement of the current Permittee indicating his /her
intent to transfer control of the Collective Garden to the new permit
applicant. In accordance with this chapter, the Director shall determine
whether the person seeking a permit would be entitled to the issuance of a
permit.
J. Membership Application and Verification.
When a qualifying patient wishes to join a Collective Garden, the following
• application guidelines shall be followed by the Collective Garden to help ensure
that cannabis grown for medical use is not diverted to illicit markets:
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
1. Verify the individual's status as a qualifying patient by obtaining
and maintaining a copy of valid documentation as defined in subsection B
(26), all as required by Chapter 69.51A RCW; and
2. Have the applicant for membership in the Collective Garden
agree not to distribute marijuana to non - members; and
3. Have the applicant for membership in Collective Garden agree
not to use the marijuana for other than medical purposes.
4. Membership as a qualifying patient shall be restricted to only
those patients and with current valid documentation as defined by RCW
69.51A.010 and subsection B (26) of this section.
5. The membership application and approval process shall include
written authorization from any member who . is a qualifying patient
consenting to allow the Permittee and the city to verify the member's
written documentation from his or her doctor.
6. The membership application and approval process shall include
a statement from any member who is a qualifying patient that he or she
does not belong to any other Collective Garden in the city or, other
collective garden as defined in Chapter 69.51A RCW in the State of
Washington. No member may be admitted for membership into a
Collective Garden as a qualified patient in the City of Yakima if they
belong as a qualified patient or designated provider to in another collective
garden for medical marijuana in the State of Washington.
•
K. Business Licenses, Sales Tax, and Seller's Permits.
1. In the event the State of Washington determines that medical
marijuana (cannabis) transactions are subject to sales tax, regardless of
whether the individual or group makes a profit, then those engaging in
transactions involving medical marijuana must obtain necessary permits
and tax reporting forms from the Department of Revenue, or other .
applicable state agency.
2. A Collective Garden shall be exempt from the requirement to
obtain a City of Yakima business license pursuant to Title 5 of this Code.
L. Development, Operational and Performance Standards. Collective
Gardens shall operate in conformance with the following standards to assure that
the, operations of the Collective Garden is in compliance with Washington law
and city codes, and to mitigate the adverse secondary effects from operations of
facilities processing and /or producing cannabis for medical purposes.
1. Prohibited Locations. No Collective Garden shall be located:
(a) Within 1,000 feet of another Collective Garden, school,
public library or public park, or residential treatment facility; or
(b) Within 300 feet of a youth- oriented facility or church; or
(c) In any structure sharing common walls with any other
building. 4110
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
(d) The distance between a Collective Garden and the uses
and, zones described above, including another Collective Garden,
shall be measured in . a straight line, without regard to intervening
structures or objects, from the closest property line, or exterior wall
of the building or structure, or a portion of the building or structure if
located on a property line, in which the Collective Garden is
located, to the boundary or closest property line where the use or
zone described above is located..
(e) Where the uses or zones described above are legally
created or located within the established buffer areas after the date
of application for, a Collective Garden permit, or the date of
issuance of such permit, it shall not be the sole basis for denial or
revocation of the permit.
2. Security and Lighting Plan.
(a) A Medical Marijuana Collective Garden shall provide
adequate security and lighting on -site to ensure the safety of
persons, protect the premises from theft at all times, and ensure
that the surrounding neighborhood and businesses are not
negatively impacted by nuisance activity such as loitering and
crime.
(b) A Collective Garden must ensure that all cannabis is
securely stored.
(c) All exterior windows, of buildings housing the facility shall
be designed and maintained to prevent observation of cannabis
plants and products by any person within public property outside
the building.
3. Retail Sales Prohibited. No Collective Garden shall conduct or
engage in the commercial sale of any product, good or service. The term
"commercial sale" does not include medical use of cannabis on terms and
conditions consistent with this chapter and applicable law.
4. A Collective Garden shall cultivate marijuana (cannabis) only on
the licensed premises subject to the limitations and provisions of Chapter
69.51A RCW and may only provide or distribute cannabis for medical use
to its members consistent with quantities approved for patient use.
5. No Collective Garden shall distribute or sell medical marijuana
for a profit.
6. Signage and ,Notices. A Collective Garden shall notify its .
members of the following in writing and through posting of a minimum 11-
inch by 17 inch size sign in a conspicuous location indoors in the premises
1111 where it will be visible to members in the normal course of a transaction:
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
(a) Use of medical marijuana shall be limited to the members
of the Collective Garden who are qualifying patients identified on
the valid documentation issued for such patient by the patient's
health care professional. Secondary sale, barter, or distribution of
medical marijuana is a crime and can lead to arrest.
(b) Members of the Collective Garden must comply with the
Clean Indoor Air Act, Chapter 6.80 of this code, as applicable.
(c) Forgery of medical documents or documents for a
designated provider is a crime.
7. Member Records. A Collective Garden shall maintain records of
its members, and must track when members' medical marijuana
authorization documentation expire and enforce conditions of membership
by excluding members whose authorizations are invalid or have expired,
or who are caught diverting marijuana for non - medical use. The Collective
Garden shall maintain membership records on -site.
8. Collective Garden Records.
(a) A Collective Garden shall keep accurate records, follow
• accepted cash handling practices and maintain a general ledger of
cash transactions. Additionally, a Collective Garden shall maintain
records of all Members' contribution of labor, resources or money to
the Collective Garden.
411
(b) A Collective Garden shall allow the Director access to the
books, records, accounts, and any and all data relevant to its
permitted activities for purposes of conducting an audit or
examination to determine compliance with this Municipal Code and
all applicable laws. Books, records, accounts, and any and all
relevant data will be produced to no later than twenty -four (24)
hours after receipt of the Director's request.
9. Dispensing Operations.
(a) The Collective Garden shall only provide, distribute,
dispense, give or transmit medical marijuana to member qualifying
patients. This shall include possession of a valid physician's written
authorization for current medical use of cannabis by the qualifying
patient. A Collective Garden shall not distribute medical marijuana
to any person who is not a member in good standing of the
Collective Garden.
(b) A Collective Garden shall not provide marijuana to any
member in an amount not consistent with personal medical use, as
recommended by the authorizing physician.
(c) No recommendations for use of medical marijuana shall
be issued on -site, and the Permittee shall not have a physician on-
site to evaluate patients.
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
(d) A Collective Garden may only process, produce,
cultivate, dispense, store or transport marijuana in amounts
consistent with Chapter 69.51A RCW.
(e) The exterior appearance of any structure on the licensed
premises shall be compatible with the structures already
constructed or under construction within the immediate
neighborhood, to ensure against blight, deterioration, or substantial
diminishment or impairment of property values in the vicinity.
(f) The operator(s) of Collective Garden shall maintain the
premises, location, property and /or structures free of litter, debris,
junk and other similar cast -off materials and free of graffiti.
10. Compliance with Conditions and Other Requirements.
(a) City of Yakima Code Enforcement Officers, City of
Yakima Police Officers, the Director, or other agents or employees
of the City requesting admission for the purpose of determining
compliance with this chapter shall be given unrestricted access 'to
the licensed premises during normal hours of operation.
(b) A Collective Garden shall meet any specific, additional
operating procedures and measures as may be imposed as
conditions of approval by the Director to ensure that the operations
of the Collective Garden are consistent with protection of the
health, safety and welfare of the community, qualifying patients,
and will not adversely affect surrounding uses.
(d) A Collective Garden shall comply with all other applicable
property development and design standards of the City's Municipal
Code and Development Code. Any building in which the licensed
activity is located shall comply with all applicable local, state and
federal rules, regulations and laws including, but not limited to,
building codes and the American with Disabilities Act.
(e) A Collective Garden shall comply with and operate in
compliance with Chapter 69.51A RCW and all regulations
pertaining thereto., and all applicable provisions of city codes,
including but not limited to the Clean Indoor Air Act, Chapter 6.80 of
this code.
11. Indemnification. Every permit issued under this Chapter shall
contain a condition requiring the applicant to execute an agreement with
the City whereby the applicant and Collective Garden agree to defend and
indemnify the City from any civil liability arising from a lawsuit filed by any
third person against both the Collective Garden and City arising from or
associated with the operations of the Collective Garden.
M. Fees.
The annual permit fee for each Medical Marijuana Collective Garden
shall be $50.00.
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
•
•
N. Renewal of Permit Required.
1. Permits may be renewed by applying with the Director for
additional one (1) year periods upon application by the Permittee, unless
the permit is suspended or revoked in accordance with the provisions of
this chapter.
2. Complete applications for renewal shall be made at least forty -
five (45) calendar days before the annual expiration of the permit, and
shall be accompanied by a nonrefundable renewal fee. Applications for .
renewal shall be governed by the same criteria for approval as initial
applications for permits.
3. Applications for renewal made less than forty -five (45) days
before the annual expiration date shall not stay the annual expiration date
of the Permit, and in addition to satisfying all other criteria for renewal, the
applicant shall be required to demonstrate good cause for failing to timely
renew his /her application. The Director shall have the sole discretion to
determine whether such good cause is demonstrated.
4. If a Permit expires without being renewed, the Permittee of the
expired Permit must apply for a new Permit by complying with all
requirements of this Chapter applicable to an original application for a
Permit.
O. Suspension or Revocation of a Permit.
1. The Director may suspend or revoke a permit for any of the
following reasons:
(a) The Permittee fails to comply with this chapter, including
but not limited to, the operating restrictions set forth in this chapter
or applicable federal or state law; or
(b) The Permittee fails to comply with the condition of its
permit; or
(c) The Permittee is operating in a manner, or is causing or
allowing a nuisance in connection with the premises; or
(d) The Permittee is convicted of a public offense in any
court of competent jurisdiction, for the violation of any law which
relates to his /her permit or the operation of the Collective Garden;
or
(e) The Legislature or the Courts interpret or change the law
in a manner that precludes the operation of the Collective Garden
such that the operation plan is not lawful.
2. Upon determining that grounds for suspension or revocation of a
permit exist, the Director may issue to the Permittee written notice of the
suspension or revocation, stating the reasons therefore, and serve the
notice, together with a copy of this Chapter, upon the Permittee.
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DRAFT — ORDINANCE — MEDICAL MARIJUANA — September 30, 2011
3. The suspension or revocation shall become effective fourteen
(14) calendar days following the date of service upon the Permittee,
unless the Permittee files a written request for an appeal hearing pursuant
to this chapter. If the Permittee files an appeal within the time and manner
prescribed, the Permit shall remain in effect until the appeal is finally
determined.
P. Appeals.
Appeals shall be processed in accordance with the provisions of Chapter
15.16 YMC.
Q. Violations.
The establishment, maintenance or operation of a Collective Garden in
violation of this chapter, or applicable local or state law or rule, shall be unlawful,
and is declared to be a public nuisance and may be abated by the City either
pursuant to the Municipal Code or any available legal remedies, including but not
limited to administrative enforcement and /or civil injunctions. The City may also
• suspend or revoke a permit, pursuant to the terms of this Chapter.
Section 3. Except as amended herein, Title 15 of the Yakima Municipal Code
shall remain unchanged.
411 Section 4. This ordinance shall be in full force and effect 30 days after its
passage, approval, and publication as provided by law and by the City Charter.
PASSED BY THE CITY COUNCIL, signed and approved this day of
, 2011.
ATTEST: Micah Cawley, Mayor
City Clerk
Publication Date:
Effective Date:
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