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require a HACCP (Hazard Analysis and Critical Control Points) plan before approving the distribution of such medical cannabis products at a Dispensary. Such products requiring a HACCP plan may include ice cream and other dairy products. (b) Baked medicinal products (i.e. brownies, bars, cookies, cakes), tinctures and other non-refrigerated type items are acceptable for manufacture and sale at a Dispensary. (c). All items shall be individually wrapped at the original point of preparation. Labeling must include a warning if nuts or other known allergens are used, and must include the total weight (in ounces or grams) of cannabis in the package. A warning that the item is a medication and not a food must be distinctly and clearly legible on the front of the package. The package label must have a warning clearly legible emphasizing that the product is to be kept away from children. The label must also state that the product contains medical cannabis, and must specify the date of manufacture. (d) Packaging that makes the product attractive to children or imitates candy is not allowed. Any edible cannabis product that is made to resemble a typical food product (i.e. brownie, cake) must be in a properly labeled opaque (non see-through) package before it leaves the Dispensary. Deliveries must be in properly labeled opaque packages when delivered to a patient. DRAFT Medical Marijuana Dispensary Ordinance (12/3/2012 City Council meeting) 8 (e) Individuals conducting the manufacturing or sale of products shall thoroughly wash their hands before commencing production and before handling the finished product. Gloves must be worn when packaging edible cannabis products. (f) In order to reduce the likelihood of foodborne disease transmission, individuals who are suffering from symptoms associated with acute gastrointestinal illness or are known to be infected with a communicable disease that is transmissible through foodstuffs are prohibited from preparing edible cannabis products until they are free of that illness or disease, or are incapable of transmitting the illness or disease through foodstuffs. Anyone who has sores or cuts on their hands must use gloves when preparing and handling edible cannabis products. (g) Edible cannabis products for sale or distribution at a Dispensary must have been prepared by a member of that Dispensary. No non-member edible cannabis products are allowed for sale or distribution at a Dispensary. (h) A patient or primary caregiver who produces edible cannabis products that are sold at more than one Dispensary in the City or Alameda County must become a State certified food handler. If more than one person is involved in producing edible cannabis products at one facility, only one person needs to be certified. The valid certificate number of the member who has prepared the edible cannabis product must be on record at the Dispensary where the product is sold or distributed, and a copy of the certificate kept either on-site, or made available during inspections if kept off-site. (16) All employees responsible for the handling, processing, dispensing, providing and cultivation of marijuana must be members of the Dispensary. Prior to employment, the employee members must be fingerprinted (through a Live Scan) for the purpose of conducting a background check. The purpose is to determine whether the employee has been convicted or plead guilty, plead for or was granted entry into a diversion program in lieu of conviction for, or plead nolo contendre to the following criminal offenses, or their equivalent if arising out of state: i) Health and Safety Code Sections 11350 et al (pertaining to controlled substances, with the exception of marijuana related offenses) ii) Penal Code Section 187 (homicide) iii) Penal Code Section 207 (kidnapping) iv) Penal Code Section 211 (robbery) v) Penal Code Sections 240-248 (assault & battery) vi) Penal Code Section 261 (rape) vii) Penal Code Section 314 (indecent exposure) viii) Penal Code Section 450 (arson) ix) Penal Code Sections 458-464 (burglary) x) Penal Code Sections 470-483.5 (forgery) xi) Penal Code Sections 484-502.9 (larceny) xii) Penal Code Sections 503-515 (embezzlement) The employee applicant must contact the Chief of Police for information related to the processing and cost of the fingerprinting, and any costs must be paid for in advance by the employee applicant. The background check shall review the last five (5) years of the employee applicant’s criminal history. If the background investigation determines the employee has been convicted of one of the above offenses, the Dispensary shall no longer employ the member as an employee. (b) Recordkeeping DRAFT Medical Marijuana Dispensary Ordinance (12/3/2012 City Council meeting) 9 The Dispensary shall maintain records of its members using only the State of California Medical Marijuana Identification Card number issued by the County or the County's designee, pursuant to California Health and Safety Code Section 11362.7 et seq., or a copy of the written doctor’s recommendation, as a protection for the confidentiality of the cardholders. The Dispensary shall track when members’ medical marijuana recommendations and/or identification cards expire and enforce conditions of membership by excluding members whose identification cards or recommendations are invalid or expired. The Dispensary shall maintain member records in a manner to protect confidential information in the records if the records contain information protected by applicable law, including but not limited to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and Public Law 104-191. A Dispensary shall exclude members who are caught diverting marijuana for non-medical use. All membership records shall be maintained on site. (1) A Dispensary shall, by using the patient or caregiver’s identification number, keep an accurate account of the number of members that visit the Dispensary each month, and also for the entire permit year. (2) Within thirty (30) days of the end of a calendar quarter, the Dispensary shall provide the City a count of the total number of members of the Dispensary and the number of Dispensary visits by each member during the previous calendar quarter. (3) Within thirty (30) days of the end of the calendar quarter, the Dispensary shall provide the City a listing of the medical marijuana products for sale during the previous calendar quarter, the prices of such products, and the end of quarter quantity on hand, listed in the applicable units, for each product. (4) The Dispensary shall keep accurate records, follow accepted cash handling practices and maintain a general ledger of cash transactions. The Dispensary shall maintain records of all members’ contribution of labor, resources or money to the Dispensary. (5) The Dispensary shall allow the City to access the books, records, accounts and all data relevant to its operations for purposes of conducting an audit or examination to determine compliance with the Municipal Code, Administrative Regulations, conditions of approval, and applicable laws. Books, records, accounts and all relevant data shall be produced no later than twenty-four (24) hours after receipt of the City’s request. (6) The Dispensary shall maintain a log of patient complaints and shall make the log available to the City upon request. The log shall contain at a minimum the date of the complaint, the complaining patient’s identification number or reference to his/her written recommendation, the nature of the complaint, and the action taken by the Dispensary to address the complaint. (c) Facilities (1) A Dispensary must be located at least one thousand feet (1000’) from a public or private school, public library, youth center (serving youth ages eighteen (18) and under), parks and recreation facilities, and another Dispensary and five hundred feet (500’) from a residential zone. DRAFT Medical Marijuana Dispensary Ordinance (12/3/2012 City Council meeting) 10 (2) The Dispensary shall not permit any breach of peace inside of the Dispensary or any disturbance of public order or decorum by any tumultuous, riotous or disorderly conduct. (3) The City may impose Dispensary facility size and height conditions to preserve the public health, safety, and welfare of surrounding properties. (4) The Dispensary shall be designed with sufficient sound absorbing insulation so that the noise generated inside the Dispensary is not audible on the premises, beyond that of normal commercial offices, or public rights-of-way, or any other building or other separate unit within the same building as the Dispensary. (5) The Dispensary shall be designed to provide sufficient odor absorbing ventilation and exhaust systems so that any odor generated inside the Dispensary is not detected outside the building, on adjacent properties or public rights-of-way, or within any other unit located within the same building as the Dispensary, if the use only occupies a portion of a building. (6) The Dispensary shall provide litter removal services twice (2) each operating day on and in front of the premises and on public sidewalks within one hundred feet (100’) of the Dispensary. (d) Security (1) Security cameras shall be installed and maintained in good condition, and the camera and recording system must be of adequate quality, color rendition and resolution to allow the identification of an individual. The cameras shall be in use 24 hours a day, 7 days per week, and shall cover the marijuana dispensing areas, storage areas, all doors and windows to the Dispensary, parking areas and other areas as determined by the Chief of Police. The recordings shall be maintained at the Dispensary property for a period of sixty (60) days. (2) The Dispensary shall be alarmed with a centrally-monitored fire and burglar alarm system, and monitored by an alarm company properly licensed by the State of California Department of Consumer Affairs Affairs Bureau of Security and Investigative Services in accordance with California Business & Professions Code § 7590 et seq. and whose agents are properly licensed and registered under applicable law. (3) During Business Hours, the Dispensary shall provide a minimum of three (3) security guards duly licensed by the State of California, Department of Consumer Affairs. Each security guard shall possess a “Security Guard Card” at all times, and shall not possess firearms or tasers. (4) Security guard duties shall include, but are not limited to, ensuring no person smokes any substance within twenty-five feet (25’) of any building entrance, exit, window and air intake vent. (5) The Dispensary shall direct its security guards to monitor the outside of the premises for loitering and unlawful sale of medical marijuana by members. Security guards shall be directed to report to the Dispensary all unlawful sales of medical marijuana by members. The Dispensary shall immediately cease providing medical cannabis to the reported member, and make a report within twenty-four (24) hours to the Chief of Police, and the Alameda County Health Department and/or the doctor that issued the medical marijuana recommendation for the member. The Dispensary shall keep a record of all incidents where members unlawfully provided marijuana to non-members. The Dispensary shall inform patients and DRAFT Medical Marijuana Dispensary Ordinance (12/3/2012 City Council meeting) 11 primary caregivers about this provision and remind them that it is unlawful for them to sell medical cannabis to non-members. (6) Windows and roof hatches at the property shall be secured so as to prevent unauthorized entry and also equipped with latches that may be released quickly from the inside to allow exit in the event of an emergency. (7) The Dispensary shall maintain adequate exterior lighting in parking areas. (e) Signage (1) Exterior signage for a Dispensary shall be limited to one wall sign not to exceed ten (10) square feet in area, and one (1) identifying sign not to exceed two (2) square feet in area. Such signs shall not be directly illuminated. (2) The Dispensary shall, within sixty (60) days of the issuance of the Dispensary permit, post and thereafter maintain signs inside the Dispensary where they may be easily read by members. Each sign shall be white with black lettering, and shall comply with the following following regulations regarding text, size and content: Sign 1: Font size at least 1 inch; Overall size at least 18” by 33” PATIENT NOTICE 1. YOU HAVE THE RIGHT TO HAVE YOUR PRODUCT REWEIGHED AND SUPPLEMENTED IF IT IS UNDER THE STATED WEIGHT AT THE TIME OF PURCHASE. 2. IF YOU DO NOT HAVE A VALID STATE OF CALIFORNIA IDENTIFICATION CARD ISSUED BY ALAMEDA COUNTY HEALTH DEPARTMENT, THIS DISPENSARY MUST CONFIRM YOUR MEDICAL NEED FOR MARIJUANA. IF YOU HAVE A VALID IDENTIFICATION CARD, YOU SHOULD NOT BE ASKED FOR ADDITIONAL INFORMATION, UNLESS OTHER HEALTHCARE SERVICES ARE BEING PROVIDED. Sign 2: Font size at least 1 inch; Overall size at least 18” by 33” TO REGISTER COMPLAINTS ABOUT THIS DISPENSARY PLEASE CONTACT _________ Sign 3: Font size at least 1 inch; Overall size at least 23” by 32” THE DIVERSION OF MARIJUANA FOR NONMEDICAL PURPOSES IS A VIOLATION OF STATE LAW. Sign 4: Font size at least 1 inch THE USE OF MARIJUANA MY IMPAIR A PERSON’S ABILITY TO DRIVE A MOTOR VEHICLE OR OPERATE HEAVY MACHINERY. DRAFT Medical Marijuana Dispensary Ordinance (12/3/2012 City Council meeting) 12 Sign 5: Font size at least 1 inch LOITERING AT THE LOCATION OF A MEDICAL CANNABIS DISPENSARY FOR AN ILLEGAL PURPOSE IS PROHIBITED BY CALIFORNIA PENAL CODE SECTION 647(h). Sign 6: Font size at least 1 inch THIS MEDICAL CANNABIS DISPENSARY HAS RECEIVED A PERMIT TO OPERATE FROM THE CITY OF SAN LEANDRO 4-33-600 – Seller’s Permit Requirement. The State Board of Equalization has determined that medical marijuana transactions are subject to sales tax, regardless of whether the individual or group makes a profit, and those engaging in transactions involving medical marijuana must obtain a Seller’s Permit from the State Board of Equalization. Such permit shall be conspicuously displayed at the Dispensary. Failure to maintain the Seller’s Permit is grounds for revocation of the Dispensary permit. 4-33-800 Revocation, Suspension and Appeals. For suspensions or revocations of Dispensary permits, the City shall follow the procedures set forth in San Leandro Zoning Code section 5-2906, unless the suspension shall be effective immediately by order of the City Manager or his or her designee pursuant to section 4-33-900 of the Municipal Code. 4-33-900 -Prohibited operations; Nonconforming Use and Immediate Suspension of Permit. All dispensaries in violation of California Health and Safety Code Section 11362.7 et seq. and 11362.5 et seq., this Chapter, or any other applicable State law are expressly prohibited. It is unlawful for any Dispensary in the City, or any agent, employee or representative of such Dispensary to permit any breach of peace therein or any disturbance of public order or decorum by any tumultuous, riotous or disorderly conduct on the premises of the Dispensary, or to violate any State law, or this Chapter. Any person arrested for violation of law, or acts expressly prohibited herein while upon, inside, or within 10 feet of the premises shall be just cause for immediate suspension of the Dispensary permit by the City Manager until such time that a hearing in accordance with San Leandro Zoning Code section 5-2906 is held, and a final decision made. No use which purports to have distributed marijuana prior to the enactment of this Chapter shall be deemed to have been a legally established use under the provisions of the San Leandro Zoning Code, the San Leandro Municipal Code, or any other local ordinance, rule or regulation, and such use shall not be entitled to claim legal nonconforming status. 4-33-110 -Liability. To the fullest extent permitted by law, any actions taken by a public officer or employee under the provisions of this Chapter shall not become a personal liability of any public officer or employee of the city of San Leandro. Section II. Severability. DRAFT Medical Marijuana Dispensary Ordinance (12/3/2012 City Council meeting) 13 This Chapter shall be enforced to the full extent of the authority of the City. If any section, subsection, paragraph, sentence or word of this chapter is deemed to be invalid or beyond the authority of the City, either on its face or as applied, the invalidity of such provision shall not affect the other sections, subsections, paragraphs, sentences, or words of this chapter, and the applications thereof; and to that end the sections, subsections, paragraphs, sentences and words of this chapter shall be deemed severable. Section III. EFFECTIVE DATE AND PUBLICATION. This ordinance shall take effect thirty (30) days after adoption. The City Clerk is directed to publish the title once and post a complete copy thereof on the City Council Chamber bulletin board for five (5) days prior to adoption. PASSED BY THE FOLLOWING VOTE: AYESNOESABSENTABSTENT IONAttest: _______________________________ Marian Handa City Clerk City of San Leandro, California 1964161.1 1964161.3 Case Current Status City of Lake Forest v. Evergreen Holistic Collective (2012) 203 Cal.App.4th 1413, rev. granted by California Supreme Court, S201454. -City enacted a ban calling dispensaries a per se public nuisance Appeals court ruled the City’s total ban is preempted by the Compassionate Use Act (CUA) and the Medical Marijuana Program Act (MMPA). -The case is before the Cal. Supreme Court, so it is not the law. People v. G3 Holistic, Inc. (2011); nonpublished opinion; rev. granted by California Supreme Court, S198395 -City enacted its ban through its zoning ordinance. Appeals court ruled the City’s total ban of dispensaries in its zoning ordinance is not preempted by the CUA/MMPA. -The case is before the Cal. Supreme Court, so it is not the law. City of Riverside v. Inland Empire Patient’s Health & Wellness Center, Inc. (2011) 200 Cal.App.4th 885; rev. granted by California Supreme Court S198638 -City’s local nuisance law bans dispensaries Appeals court ruled that a local public nuisance law that bans dispensaries is not preempted by the CUA/MMPA -The case is before the Cal. Supreme Court, so it is not the law. Pack v. Superior Court (2011) 199 Cal.App.4th 1070; rev. granted, dismissed by Cal. Supreme Court, S197169 -Dismissed by California Supreme Court. -The appeals court ruled that a “Regulatory” ordinance allowing dispensaries with a permit is preempted by federal law. -Federal preemption is still an issue, and has not been clearly decided. -Unpublished court of appeal decision, so it is not the law County of Los Angeles v. Alternative Medicinal Cannabis Collective (July 2, 2012) 207 Cal.App.4th 601 (2d Distr., Div. 1). A public agency’s total ban is preempted by the CUA/MMPA -County was the regulatory agency in this case. -Review before Cal. Supreme Court is pending, but has not been granted. -This case is the current law