Pursuant to the authority granted by Article XI, section 7 of the California Constitution, Health and Safety Code sections 11362.768 and 11362.83, and Government Code sections 65800 et seq., the board of supervisors does enact this chapter, which shall be known and may be cited as the "Tehama County Marijuana Dispensary Ordinance."

(Ord. No. 1957, § 1, 6-28-2011)

The Board of Supervisors of the County of Tehama hereby finds and declares the following:

A.

In 1996, the voters of the State of California approved Proposition 215 (codified as California Health and Safety Code section 11362.5, and entitled "The Compassionate Use Act of 1996").

B.

In 2004, the Legislature enacted Senate Bill 420 (codified as California Health and Safety Code sections 11362.7 et seq.) to clarify the scope of Proposition 215, and to provide qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes with a limited defense to certain specified state criminal statutes.

C.

Proposition 215 and Senate Bill 420 provide 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 land use regulation of facilities and premises at which marijuana is dispensed.

D.

Facilities and premises at which marijuana is dispensed have the potential to cause serious harmful effects on the neighborhoods in which they are located, to owners of property in such neighborhoods, and to citizens living, visiting, shopping, conducting business or otherwise present in the area, as reported by several other California counties and cities. Such effects are due to such factors as the illegal nature of the activity under federal law, the presence of large quantities of marijuana at the dispensaries, the presence of large amounts of cash, the presence of weapons, and other factors. Harmful effects at the dispensaries and the surrounding areas have included an increase in burglaries, robberies, illegal sales of drugs, use or possession of marijuana by unauthorized persons, attacks on persons entering or leaving the premises, loitering, smoking marijuana in public places, and driving while under the influence of marijuana. These harmful "secondary effects" are further detailed in the White Paper on Marijuana Dispensaries by California Police Chief's Association Task Force on Marijuana Dispensaries dated April 22, 2009. The violent January 2009 home invasion burglary and homicide in Los Molinos, targeting the substantial amounts of marijuana possessed by the home's occupant ostensibly for medical purposes, is one recent local example of the "secondary effects" of concentrating substantial amounts of marijuana in one place.

E.

The County of Tehama has a compelling interest in establishing comprehensive land use regulation of facilities and premises at which marijuana is dispensed, in order to mitigate and avoid the secondary effects described above and protect the public health, safety and welfare of its residents and businesses.

F.

Proposition 215 and Senate Bill 420 do not preempt local zoning or nuisance regulations affecting marijuana-related land uses; rather, Senate Bill 420 expressly authorizes cities and counties to regulate the "location and establishment" of marijuana dispensaries (Health & Saf. Code, § 11362.768, subd. (f)), and to adopt and enforce ordinances that are consistent with Senate Bill 420. (Health & Saf. Code, § 11362.83.) Local regulatory authority over such land uses has been recognized and affirmed in such cases as City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 and County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861.

G.

As with most land uses, the secondary impacts associated with facilities and premises at which marijuana is dispensed can vary significantly depending on both the manner and intensity with which the activity is conducted. The operation of a highly visible retail-level enterprise (i.e., "storefront") presents heightened impacts, as would a large-scale collective or cooperative regardless of its operating characteristics. The intent of this ordinance is not to prohibit all collective and cooperative marijuana cultivation, but rather to limit the manner and intensity of such activities to protect the public health, safety and welfare. Therefore, the definition of "dispensary" set forth in this chapter clearly distinguishes between large-scale dispensaries and small private patient groups. Prohibiting "dispensaries," as defined, does not prohibit all collective and cooperative marijuana cultivation, and does not affect small private medical marijuana collectives and cooperatives operating in a manner and intensity that does not adversely impact the public welfare.

H.

No provision of this chapter shall be construed to authorize, legalize, allow, approve, or condone any activity that violates any provision of state or federal law or this Code. Nothing in this ordinance shall be construed to allow the use of marijuana for non-medical 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 the State of California, or the United States of America.

(Ord. No. 1957, § 1, 6-28-2011)

Except where the context otherwise requires, the following definitions shall govern the construction of this chapter:

A.

"Facility" includes any facility, building, structure, premises, or location, whether fixed or mobile, permanent or temporary, and any delivery service.

B.

"Marijuana dispensary" means any for-profit or not-for-profit facility meeting any or all of the following criteria:

1.

A facility where marijuana is made available, sold, given, distributed, or otherwise provided by or to ten or more persons (including, but not limited to, any "primary caregiver(s)," "qualified patient(s)," or "person(s) with an identification card") pursuant to Health and Safety Code sections 11362.5 and/or 11362.7 et seq. or otherwise.

2.

A facility where ten or more persons (including, but not limited to, any "primary caregiver(s)," "qualified patient(s)," or "person(s) with an identification card") meet or congregate to make available, sell, give away, distribute, or otherwise provide marijuana for medical or other purposes.

3.

A facility where any marijuana cooperative, collective, operator, establishment, or provider operates a storefront or mobile retail outlet providing marijuana or other goods or services to the members of the collective or cooperative or to the public.

"Marijuana dispensary" includes any medical marijuana collective or cooperative that meets any or all of the foregoing criteria. "Marijuana dispensary" shall not include the following uses, as long as the location of such uses is otherwise regulated by the Tehama County Code: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health & Safety Code; a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health & Safety Code; a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health & Safety Code; a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health & Safety Code, a residential hospice; or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health & Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health & Safety Code sections 11362.5 et seq. and 11362.7 et seq. and the Tehama County Zoning Code (Title 17 of the Tehama County Code).

(Ord. No. 1957, § 1, 6-28-2011)

Notwithstanding any other provision of this Code, the establishment, development, construction, maintenance, or operation of a marijuana dispensary is hereby prohibited, and is not a permitted or conditionally permitted use in any zoning district, even if located within an otherwise permitted use. No person shall establish, develop, construct, maintain, or operate a marijuana dispensary, and no application for a building permit, use permit, variance, or any other entitlement authorizing the establishment, development, construction, maintenance, or operation of any marijuana dispensary shall be approved by the County of Tehama or any officer or employee thereof.

(Ord. No. 1957, § 1, 6-28-2011)

If any section, subsection, sentence, clause, portion, or phrase of this chapter is for any reason held illegal, invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The board hereby declares that it would have passed this chapter and each section, subsection, sentence, clause, portion, or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid or unconstitutional.

(Ord. No. 1957, § 1, 6-28-2011)