The city council finds and determines as follows:

A.

Federal law prohibits the possession and distribution of marijuana. (21 U.S.C. Section 812, 841(a)(1), 844) Under federal law there is no exception for medical marijuana. Although California criminalizes the possession and cultivation of marijuana generally (Health & Safety Code Section 11357, 11358), California has decriminalized the possession and cultivation of medical marijuana, when done pursuant to a physician's recommendation. (Health and Safety Code Section 11362.5(d).) Further, California law decriminalizes the collective or cooperative cultivation of medical marijuana. (Health & Safety Code Section 11362.775) In 2004, the legislature enacted Senate Bill 420 (codified at Health and Safety Code Section 11352.7 et. seq.) to clarify the scope of Proposition 215(the "Compassionate Use Act") and to provide qualifying patients and primary care givers who collectively or cooperatively cultivate marijuana for medical purposes with limited defense to certain specified state criminal statutes. Finally, recognizing the dangers associated with the medical marijuana industry, the state legislature adopted Health and Safety Code Section 11362.83, permitting:

(1)

Cities or other local governing bodies to adopt local ordinances that regulate the location, operation, or establishment of medical marijuana cooperatives or collectives; and

(2)

Enforce said civil and criminal enforcement of local ordinances.

B.

The city council acknowledges that state and federal laws prohibit the possession, sale and distribution of marijuana. The city council also acknowledges that the State of California has adopted the Compassionate Use Act and the Medical Marijuana Program Act. The city council also acknowledges that it is charged with the duty to protect the health, safety and welfare of its residents and the public in general.

C.

The City of Orange Cove is a small rural farming community at the base of the Sierra Nevada Range and surrounded by vast agricultural resources. The community is a relatively poor community with a high rate of unemployment. There has developed within the community a large number of marijuana grows in the backyards of residential neighborhoods, to the extent that such grows are visible from the street and the pungent odor of marijuana is clearly noticeable to the passerby. This development of marijuana grows, particularly in residential neighborhoods, threatens the health, safety and welfare of the residents. These grows have become a target for crime. Given the small size of this community, if regulations are not put in place, the city council fears that the outdoor cultivation of marijuana will permeate the entire community and bring more crime to the community. Recently, in the Central San Joaquin Valley, and more particularly in Fresno County, there have been incidents of violence including homicides and missing persons relating to the cultivation of medical marijuana.

D.

A scan of newspaper headlines and the internet paints a controversial picture of the medical marijuana industry. Some have been caught selling marijuana to people not authorized to possess it, many intentionally operate in the shadows without any business licensure or under falsified documentation, and some have been the scene of violent robberies and murder. These abuses have prompted a range of reactions from communities across California. forty-two cities and nine counties have local ordinances regulating dispensaries, one hundred three cities and fifteen counties have moratoriums, and one hundred forty-three cities and twelve counties have bans in place.

E.

Arrests have been made within this community of individuals armed with machine guns coming into this community for the purpose of stealing marijuana being cultivated within the community.

F.

There have been many reports of violence incidental to the cultivation of marijuana, whether medical or non-medical. There have been reports of shootings in Fresno County related to marijuana. One of the shootings resulted in a death. There have been reports of missing persons related to the medical marijuana industry. The reports of marijuana related threats to neighboring landowners and other citizens have escalated and grown in recent months.

G.

Additionally, a number of sources, including the United States Department of Justice's California Medical Marijuana website (http://www.usdoj.gov/dea/ongoing/legalization.html) and the "White Paper on Marijuana Dispensaries" published by the California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009) have concluded that the establishment of marijuana dispensaries can lead to an increase in crime. Among the crimes cited are burglaries, robberies, sales of illegal drugs in the areas immediately surrounding such dispensaries, as well as other public nuisances such as loitering, smoking marijuana in public places, sales to minors and driving while under the influence of marijuana.

H.

Although decriminalized in California, the unregulated cultivation and dispersement of medical marijuana in the City of Orange Cove pose an immediate and serious threat to the health, safety and welfare of the community. The State of California has left the regulation of such activities to local authorities. Comprehensive civil regulations of premises used for medical marijuana cultivation and distribution is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells, and fire hazards that may result from unregulated marijuana cultivation.

I.

The city council has considered evidence presented to it concerning the safety of the cultivation and distribution of medical marijuana and finds there is an abundance of evidence both locally, and nationally, that such business are targets of crime and the inherent risks to the public's health, safety and welfare, thereby warranting a zero tolerance policy for violations; and, as such, a proactive effort on the part of the city to prevent crime.

J.

The city council considers the unregulated cultivation and distribution of medical marijuana a current and immediate threat to the health, safety and welfare of the public.

K.

As described above, the medical marijuana industry, while decriminalized in California, still poses a threat to the health, safety and welfare of the public. The council finds that said activity does not fit squarely in any defined zoning district in the city. In order to protect the health, safety and welfare of the public and to prevent and deter criminal activity, the council finds it necessary to regulate the use of land within the city, through land use regulations.

L.

The city council now desires to impose said regulations on the business and activity of medical marijuana facilities, in order to protect the health, safety and welfare of the general public. The intent of this ordinance is not to be in conflict with federal law which expressly prohibits the possession and distribution of marijuana, but rather to impose land use restrictions upon the activities of those whose activities have been decriminalized under state law. The intent of this ordinance is not to otherwise permit the possession and distribution of marijuana, but rather to protect the health, safety and welfare of the public.

(Ord. No. 362, § 3, 10-10-2012)

A.

"Collective" or "cooperative" pursuant to Health & Safety Code Section 11362.775, medical marijuana patients and primary caregivers may "associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes." (Guidelines For the Security and Non-Diversion of Marijuana Grown for Medical Use; Department of Justice, State of California, August 2008, citing Health & Safety Code Section 11362.775)

B.

"Medical marijuana" is defined in subsection (h) of Health and Safety Code Section 11362.7.

C.

"Medical marijuana facility" is a facility wherein medical marijuana is cultivated and dispensed as a collective or cooperative pursuant to Health & Safety Code Section 11362.775.

D.

"Primary caregiver" is the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person.

E.

"Qualified patient" is a person who is entitled to the protections of California Health and Safety Code Section 11362.5.

(Ord. No. 362, § 3, 10-10-2012)

A.

Written application for a conditional use permit under this chapter shall be made to the city manager, on forms acceptable to the city manager, accompanied by a non-refundable fee as specified in the resolution adopted by the city council, which fee shall be sufficient to cover the cost of handling the application. Fees or costs incidental to the filing of a complete application, and/or associated with the conditional use permit application, and/or to meet other provisions of this chapter are not included in the application fee. The application shall be signed by the applicant or applicants. The application shall include the following:

1.

The name, address and telephone number of the applicant. The applicant must be a qualified patient, a person with an identification card or a primary caregiver as those terms are defined and used in Health and Safety Code Section 11362.7 et. seq.; and

2.

The name of each qualified patient, person with an identification card, or primary caregiver who is part of the collective or cooperative operating pursuant to the conditional use permit; and

3.

A copy of the current medical recommendation or state-issued medical marijuana card for the applicant and collective/cooperative members; and

4.

A statement, signed by the applicant and all collective/cooperative members, that they acknowledge that they may be subject to prosecution under federal or state laws; and

5.

An agreement, signed by the applicant and all members of the collective/cooperative, to waive, release, indemnify and defend the city from any and all legal liability related to or arising from the application for a license, the issuance of the license, or the enforcement of the conditions of the license, and/or the operation of any facility at which medical marijuana is cultivated; and

6.

The address of the real property upon which the medical marijuana will be cultivated, a description of the nature of the proposed use or development.

7.

The notarized signature of all property owners of the proposed site indicating the owners' consent to the application and acknowledgement that the property owner may be subject to prosecution under federal or state laws; and

8.

The fee prescribed by the city council by resolution for processing the application; and

9.

Such other information and documentation as the city determines is necessary to ensure compliance with state law and this chapter.

B.

The applicant and each member of the collective/cooperative must be fingerprinted and photographed by the police department, at the applicant's expense.

(Ord. No. 362, § 3, 10-10-2012)

A.

Notwithstanding Chapter 17.52 of this Code, applications for a conditional use permit for the cultivation of medical marijuana in an M-1 or M-2 zone district shall be processed by the city manager. Within fifteen days of receipt of a complete application, the city manager shall distribute the application to relevant departments, and the county, state and federal agencies for review and comment. Such reports shall be submitted to the city manager not later than ninety working days from the date of distribution of the application.

B.

In considering an application for a conditional use permit pursuant to this chapter, the city manager shall approve the application only upon the police chief's certification, after a background check, that each applicant, and each member of the collective/cooperative, has not been convicted of a felony, or drug or illegal substance related non-felony, or is a known member of a criminal street gang.

C.

In the event the report of the city chief of police is adverse to the issuance of the conditional use permit, the city manager shall not issue the permit. The city manager's decision to approve or deny an application shall be final. There shall be no appeal to the planning commission or city council.

D.

Notice of Decisions. Notice of the city manager's decision shall be given as follows:

1.

Denial. A letter shall be mailed to the applicant, property owner and/or authorized agent as shown on the application form.

2.

Grant. A notice of granting shall be delivered pursuant to Government Code Section 65091 to the following:

a.

To the owner of the subject real property as shown on the latest equalized assessment roll. Notice shall also be mailed to the owner's duly authorized agent, if any, and to the project applicant.

b.

To any person designated in any application or appeal to receive such notice.

c.

To every person filing with the director a written request for notice with respect to an identified proceeding specified in such request.

d.

To each local agency expected to provide water, sewage, streets, roads, schools, or other essential facilities or services to the project, whose ability to provide those facilities and services may be significantly affected.

e.

To all owners of real property as shown on the latest equalized assessment roll within three hundred feet of the real property that is the subject of the hearing. In lieu of using the assessment roll, the local agency may use records of the county assessor or tax collector which contain more recent information than the assessment roll. If the number of owners to whom notice would be mailed or delivered pursuant to this paragraph or paragraph (1) is greater than one thousand, a local agency, in lieu of mailed or delivered notice, may provide notice by placing a display advertisement of at least one-eighth page in at least one newspaper of general circulation within the local agency in which the proceeding is conducted at least ten days prior to the hearing.

f.

If the notice is mailed or delivered pursuant to paragraph (b), the notice shall also either be:

(A)

Published pursuant to Section 6061 in at least one newspaper of general circulation within the local agency which is conducting the proceeding at least ten days prior to the hearing.

(B)

Posted at least ten days prior to the hearing in at least three public places within the boundaries of the local agency, including one public place in the area directly affected by the proceeding.

g.

The notice shall include the information specified in Government Code Section 65094.

h.

In addition to the notice required by this section, a local agency may give notice of the hearing in any other manner it deems necessary or desirable.

All such notices shall be mailed within seven days after the decision is made. Whenever the action taken is subject to appeal or request for hearing by any person receiving such notice, the notice shall set forth the procedure for filing such appeal, objection, or request within a period of fifteen days after the date such action was taken.

E.

Effect of City Manager's Decision. Unless appealed to the commission pursuant to subsection F, below, the decision of the director shall be final and effective for all purposes.

F.

Appeal to the Commission. Any interested party may file an appeal of the director's action to grant, grant in modified form, or deny a special permit. When the appeal is filed, said decision shall be set aside, and a public hearing upon the matter shall be set before the commission. Notice of the hearing shall be provided pursuant to Government Code Section 65091 and subsection D above.

(Ord. No. 362, § 3, 10-10-2012)

Because the danger and risks to the health, safety and welfare of the public, the sale, transfer, assignment of a conditional use permit issued pursuant to this chapter is personal to the applicant(s) and does not run with the land. All changes in ownership, whether of property or business assets, shall require a new conditional use permit application and approval.

(Ord. No. 362, § 3, 10-10-2012)

Medical marijuana facilities, including the cultivation of medical marijuana shall at all times occur within a secure, locked, and fully enclosed structure, including a ceiling, roof or top, and shall meet the following requirements:

A.

Location. The medical marijuana facility shall be a minimum of one half mile from any school, public park or playground, recreation area, amusement park, sports facility, adult business, day care facility, church, chapel, youth-orientated establishment, places of worship, medical facility or other medical marijuana facility.

B.

Exterior. The exterior appearance of the structure shall be compatible with the exterior appearance of structures already constructed or under construction within the immediate area, and shall be maintained so as to prevent blight or deterioration, or substantial diminishment or impairment of property values within the immediate area.

C.

Security.

1.

A city police department approved twenty-four-hour centrally monitored alarm system is required.

2.

A city police department approved closed circuit television (CCTV) video monitoring shall be installed that meets the following criteria:

a.

Continuous twenty-four-hour operation and recording with minimum archival period of fourteen days.

b.

Sufficient cameras, angles of observation and lighting to allow facial feature identification of persons in interior and exterior areas where marijuana is present at any time.

c.

Sufficient cameras, angles of observation and lighting to allow facial feature identification of persons in the immediate exterior areas of doors, windows or other avenues of potential access.

d.

All CCTV recordings shall be accessible to law enforcement officers at all times during operating hours and otherwise upon reasonable request. All CCTV recording systems shall have the capability of producing tapes, DVDs or other removable media of recordings made by the CCTV system.

e.

To prevent tampering, the recorder shall be kept in a secure location and all recordings shall be date and time stamped.

D.

Structure.

1.

The structure shall meet all applicable building and fire codes, including plumbing and electrical, and all applicable zoning codes, including lot coverage, set back, height requirements, and parking requirements.

2.

At a minimum, the structure, including all walls, doors, and the roof, shall be constructed with a firewall assembly of green board meeting the minimum building code requirements for commercial structures and include material strong enough to prevent entry except through an open door.

E.

Windows.

1.

Windows and glass panes shall have vandal-resistant glazing, shatter-resistant film, glass block, or bars installed equipped with latches that may be released quickly from the inside to allow exit in the event of emergency.

2.

Windows vulnerable to intrusion by a vehicle must be protected by bollards or landscaping grade separation reasonably sufficient to prevent such intrusion.

F.

Ventilation. The structure for cultivating medical marijuana shall include a ventilation and filtration system designed to ensure that odors from the cultivation are not detectable beyond the property line and designed to prevent mold and moisture and otherwise protect the health and safety of those persons participating in the cultivation. This shall include at a minimum, a system meeting the requirements of the current, adopted edition of the California Building Code § 1203.4 Natural Ventilation or § 402.3 Mechanical Ventilation (or its equivalent(s)).

G.

Roofs, Roof Hatches, Skylights, Ceilings. For buildings in which a Medical Marijuana Facility is located:

1.

All means of gaining unauthorized access to the roof shall be eliminated. Exterior roof ladders shall be secured with locked ladder covers.

2.

Roof hatches and skylights shall be secured so as to prevent intrusion.

3.

Where a medical marijuana facility is located in a building with other tenants, the medical marijuana facility shall be secured against unauthorized access from other tenant spaces or common areas, including access through crawl spaces, ceiling spaces, ventilation systems or other access points concealed from the common areas.

H.

Visibility.

1.

No marijuana may be visible from any location off the property on which a medical marijuana facility is located.

2.

Exterior landscaping within ten feet of any building in which a medical marijuana facility is located shall be free of locations which could reasonably be considered places where a person could conceal themselves considering natural or artificial illumination.

3.

Exterior building lighting and parking area lighting must be of sufficient foot-candles and color rendition, so as to allow the ready identification of any individual committing a crime on-site at a distance of no less than forty feet.

I.

Signage and Markings. There shall be no signage or markings on the property, structure, on any other building located on the property, or off-site, which in any way evidences that the collective or cooperative cultivation of medical marijuana is occurring on the property. There shall be posted signage over each and every door or entrance which is accessible from a public street, sidewalk or alley which states that "No One Under 18 Years of Age Permitted" and "Loitering Prohibited." Said signage shall be in both English and Spanish and shall be clearly posted.

J.

Fire Suppression System. An approved automatic fire sprinkler system, designed in compliance with NFPA 13, shall be provided in buildings and portions thereof used as a medical marijuana facility.

K.

Entrances, Exits, Doors.

1.

A medical marijuana macility shall have a single, plainly identified primary entrance/exit site that is visible from public or common areas.

2.

Any exit or entrance that is not visible from a public or common area shall be plainly marked as an emergency exit only. Such emergency exits shall be self-closing, self-locking, equipped with an alarm and not used except in an emergency.

3.

Any aluminum door shall be fitted with steel inserts at the lock receptacles.

4.

Any outward opening doors shall be fitted with hinge stud kits, welded hinges or set-screw hinge pins.

5.

Panic exit hardware shall be "push-bar" design.

6.

Double doors shall be fitted with three-point locking hardware and push-bars consistent with fire agency regulations or requirements.

7.

All emergency exits shall be solid core doors featuring hinge-pin removable deterrence. Emergency exit doors shall have latch guards at least twelve inches in length protecting the locking bolt area. Latch guards shall be of minimum 0.125-inch thick steel, affixed to the exterior of the door with non-removable bolts, and attached so as to cover the gap between the door and the doorjamb for a minimum of six inches both above and below the area of the latch.

8.

All glass doors or doors with glass panes shall have shatter-resistant film affixed to prevent glass breakage.

(Ord. No. 362, § 3, 10-10-2012)

The use and operation of any facility shall not commence until such time as the city building inspector and city police department have first inspected the structure to confirm that said structure complies with the infrastructure and safety requirements set forth in this chapter, and the city has issued a certificate of occupancy.

A certificate of occupancy shall not be issued until such time as the applicant(s) have obtained a conditional use permit pursuant to this chapter.

(Ord. No. 362, § 3, 10-10-2012)

A.

The hours of operation of a medical marijuana facility shall be no earlier than 8 a.m. and no later than 8 p.m., seven days a week.

B.

No persons under the age of eighteen are allowed at, in, or on a medical marijuana facility, unless such individual is a qualified patient and accompanied by their parent or documented legal guardian.

C.

The applicant and each member of the collective/cooperative shall be limited to cultivation of medical marijuana at one medical marijuana facility at any one time.

D.

The following records must be maintained in a form and manner approved by the police department at the medical marijuana facility at all times and available for inspection by the police department:

1.

The full name, address, and telephone number(s) of the owner and lessee, including all alias names used in the previous ten years;

2.

The address where correspondence is to be mailed;

3.

A record identifying the name of the licensee and each collective/cooperative member by name, home address and telephone number;

4.

A copy of all participant physician recommendations, identification cards, and primary caregiver evidence; and shall reflect whether the recommendation is written or oral. The record shall identify the city and city of residence for the applicant, and each member;

5.

A sketch or diagram showing the property with the location of the cultivation and all buildings on the property, including a statement showing the total area occupied by the cultivation and the distance from the property lines;

6.

A statement setting forth the number of plants to be cultivated and demonstrating that the cultivation does not exceed the maximums set forth under state law or this ordinance, namely patient maximums and the cap of 99 plants;

7.

Statement identifying all persons who will be tending to the cultivation and describing the cultivation process;

8.

For lessees, written evidence that the owner has consented to use of the property for medical marijuana cultivation;

9.

Current records of any transaction by which a member pays money for marijuana from the medical marijuana facility during the two-year period preceding the current date. Such records must include at a minimum the following information:

a.

The name of the collective/cooperative member that paid money;

b.

The amount of cash involved, if any;

c.

The method of payment if not by cash; and

d.

The amount of marijuana involved.

10.

An agreement, signed by the applicant and every collective/cooperative member, that within seven days of request by the police department, they will produce for inspection by law enforcement a record, current to within forty-eight hours, of costs of cultivation, overhead and operating expenses; and

E.

The total quantity of marijuana grown or located at any medical marijuana facility shall not exceed the amount stated in Health & Safety Code Section 11362.77, but in no case, irrespective of the number of collective/cooperative members, the number of marijuana plants shall not exceed ninety-nine, whether mature or immature.

F.

No smoking or any other consumption or ingestion of marijuana is allowed at a medical marijuana facility.

G.

Medical marijuana facilities shall be available for inspection by the police department, city manager, the fire authority having jurisdiction or their respective authorized representatives, at all times during operating hours and upon reasonable notice during non-operating hours.

H.

A medical marijuana facility shall have on its premises, posted in a prominent location, a copy of its conditional use permit and a document that provides the names, home addresses, home telephone numbers and twenty-four-hour emergency telephone numbers of the applicant and every collective/cooperative member.

I.

A licensed, uniformed security guard shall be present at a medical marijuana facility at all times during hours of operation.

J.

The applicant shall not hold or maintain a license from the state department of alcohol beverage control to sell alcoholic beverages, or operate a business that sells alcoholic beverages.

K.

The applicant shall not hold or maintain a business license from the city to operate an adult business.

L.

Required participation in the cultivation: no employees. All persons who associate together for the collective or cooperative cultivation must participate in the cultivation and the cultivation must occur solely among members of the association. No employees, independent contractors, or other persons may be utilized for the cultivation.

M.

No compensation or sales: distribution only among members. No member may compensate any other member to cultivate on its behalf. All distribution of the cultivated marijuana shall be solely among members of the association and shall be without compensation of any kind. Nothing in this subsection shall be deemed to prevent a primary caregiver from subsequently providing the cultivated marijuana to one of his/her qualified patients.

N.

No on-site consumption. No on-site consumption of medical marijuana shall occur.

O.

No cultivation in conjunction with a business: The cultivation shall not occur in conjunction with any business. No products or services shall be sold from the property where the cultivation occurs.

P. The cultivation operation shall be open for inspection by any law enforcement officer or city code enforcement officer between the hours of 8:00 a.m. and 9:00 p.m. seven days a week, or at any time upon responding to a call for service related to the property where the cultivation is occurring.

(Ord. No. 362, § 3, 10-10-2012)

A conditional use permit issued pursuant to this chapter may be revoked for any violation of this chapter, or in the event any applicant or collective/cooperative member is found guilty of a felony, a drug or illegal substance non-felony, or determined by the chief of police to be a known member of a criminal street gang. A conditional use permit issued pursuant to this chapter may also be revoked, if in the discretion of the chief of police, criminal activity has occurred upon the premises, the result of which has placed the health, safety and welfare of the public in jeopardy.

Each and every violation of this chapter shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by Title 1, of this Code, which include criminal, civil and administrative remedies. Additionally, a violation of this chapter constitutes a nuisance per se, and as a nuisance per se, any violation of this chapter shall be subject to injunctive relief, revocation of the conditional use permit, revocation of the certificate of occupancy for the location, disgorgement and payment to the city of any and all monies unlawfully obtained, costs of abatement, costs of investigation, attorney fees, and any other relief or remedy available at law or equity. The city may also pursue any and all remedies and actions available and applicable under local and state laws for any violations committed by the applicant and/or the collective/cooperative members.

The city police department, with administrative assistance from the city manager's mffice, shall have primary responsibility for enforcement of the provisions of this chapter. Nothing in this chapter shall be construed as imposing on the enforcing officer or the city any duty to issue any notice to abate, nor to abate, nor to take any other action with regard to any medical marijuana facility in violation of this chapter, and neither the enforcing officer nor the city shall be held liable for failure to issue an order to abate, nor for failure to abate, nor for failure to take any other action with regard to any violation of this chapter.

In the event that a conditional use permit has been revoked pursuant to this section, the applicant shall be barred from being issued a new conditional use permit for such use at any location in the city.

(Ord. No. 362, § 3, 10-10-2012)

If any part of this chapter is for any reason held to be invalid, unlawful, or unconstitutional, such invalidity, unlawfulness or unconstitutionality shall not affect the validity, lawfulness, or constitutionality of any other part of this chapter.

(Ord. No. 362, § 3, 10-10-2012)