§ 19.08.055. Cannabis-related facilities, cultivation, and activities.

A.

Purpose and Application. The purpose of this section is to ban commercial medicinal and recreational cannabis businesses and activities of all kinds that are, the subject of the Medicinal and Adult-Use Cannabis Regulation and Safety Act (formerly known as the Medical Marijuana Regulation and Safety Act and the Adult Use of Marijuana Act) in order to promote the health, safety, and general welfare of the citizens of the county. It is also the purpose of the chapter to affirm that personal cannabis use in the county of Kern must comply with state law requirements.

B.

Commercial Recreational Cannabis Businesses Prohibited. Businesses conducting commercial recreational cannabis activity licensed under the Medicinal and Adult-Use Cannabis Regulation and Safety Act are prohibited in all zone districts. No local authorization for any of the activities covered by the license classifications identified in Business and Professions Code 26050 shall be granted for any zone district in the unincorporated area of the county of Kern.

C.

Commercial Medicinal Cannabis Businesses Prohibited. Businesses conducting commercial medicinal cannabis activity licensed under the Medicinal and Adult-Use Cannabis Regulation and Safety Act are prohibited in all zone districts. No local authorization for any of the activities covered by the license classifications identified in Business and Professions Code 26050 shall be granted for any zone district in the unincorporated area of the county of Kern.

D.

Public Nuisance. Any use, structure, or property that is altered, enlarged, erected, established, maintained, moved, or operated contrary to the provisions of this section, is hereby declared to be unlawful and a public nuisance and is subject to the enforcement provisions of subsection (J) of this section, in addition to any other enforcement remedy available to the county under any applicable state or federal statute, the Kern County Ordinance Code, or any other lawful power the county may possess.

E.

Applicability.

1.

All provisions of this section shall apply outdoors and indoors.

2.

All provisions of this section shall apply to public and private property within the county's jurisdiction.

3.

All provisions of this section shall apply to any persons, including primary caregivers and qualified patients.

4.

Nothing in this section is intended, nor shall be construed or inferred to burden any defense to criminal prosecution under the Compassionate Use Act of 1996, the Adult Use of Marijuana Act of 2016 or the Medicinal and Adult-Use Cannabis Regulation and Safety Act.

F.

Definitions. For purposes of this chapter, these words and phrases shall be defined as follows:

1.

"Cannabis" shall have the same definition as in California Business and Professions Code 26001(f) and Health and Safety Code Section 11018 as they now read or as amended.

2.

"Cannabis products" has the same meaning as in Section 11018.1 of the Health and Safety Code as it now reads or as amended.

3.

"Commercial medicinal cannabis activity" includes cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, delivery or sale of cannabis and cannabis products for non-personal medicinal purposes as provided in the Medicinal and Adult-Use Cannabis Regulation and Safety Act.

4.

"Commercial recreational cannabis activity" includes cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, delivery or sale of cannabis and cannabis products for non-personal non-medicinal purposes as provided in the Medicinal and Adult-Use Cannabis Regulation and Safety Act.

5.

"Commercial cannabis activity" includes cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, delivery or sale of cannabis and cannabis products as provided in the Medicinal and Adult-Use Cannabis Regulation and Safety Act.

6.

"County" means the county of Kern or the unincorporated area of the county of Kern as required by the context.

7.

"Cultivate" or "cultivation" is the planting, growing, harvesting, drying, curing, grading, trimming processing, or storage of marijuana in any location.

8.

"Marijuana" shall have the same definition as cannabis.

9.

"Medicinal cannabis" or "medicinal cannabis product" means cannabis or cannabis product used for medicinal purposes in accordance with the Compassionate Use Act of 1996, found at section 11362.5 of the Health and Safety Code, by a medicinal cannabis patient in California who possesses a physician's recommendation as required by the Medicinal and Adult-Use Cannabis Regulation and Safety Act.

10.

"Medicinal cannabis dispensary" or "dispensaries" means any operation, including a store-front facility or structure, mobile facility, or delivery service, wherein medical cannabis is made available, sold, offered for sale, given, distributed, traded, or otherwise provided to primary caregivers or qualified patients, as defined by this chapter.

"Medicinal cannabis dispensary" or "dispensaries" shall not include the following uses, as long as the location of such uses are otherwise regulated by code or applicable law: (i) a clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code; (ii) a health care facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code; (iii) a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code; (iv) a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the California Health and Safety Code; and (v) a residential hospice or a home health agency licensed pursuant to Chapter 8 of Division 2 of the California Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, California Health and Safety Code Section 11362.7 et seq.

11.

"Primary caregiver" shall have the same definition as in California Health and Safety Code Section 11362.7 et seq., as it now reads or as amended.

12.

"Planning director" shall refer to the director of the planning and natural resources department of the county of Kern.

13.

"Private residence" means a house, an apartment unit, a mobile home, or other similar dwelling.

14.

"Recreational cannabis" means cannabis used for non-medicinal purposes in accordance with the Medicinal and Adult-Use Cannabis Regulation and Safety Act.

15.

"Qualified patient" shall have the same definition as California Health and Safety Code Section 11362.7 et seq., as it now reads or as amended.

G.

Personal Recreational Cannabis Use. Except as provided below, personal recreational cannabis use shall comply with the Medicinal and Adult-Use Cannabis Regulation and Safety Act, including, but not limited to, California Health and Safety Code Sections 11362.1 through 11362.45 as currently stated or as otherwise amended. Outdoor planting and cultivation of cannabis is prohibited.

H.

Personal Medicinal Cannabis Use. Except as provided below, personal medicinal cannabis use shall comply with the Medicinal and Adult-Use Cannabis Regulation and Safety Act, including, but not limited to, California Health and Safety Code Sections 11362.1 through 11362.79 as currently stated or as otherwise amended. Outdoor planting and cultivation of marijuana is prohibited.

I.

Amortization of Existing Medicinal Cannabis Dispensaries. Any medicinal cannabis dispensary which was in operation on or before May 10, 2016, when the moratorium set forth in former Chapter 5.86 on the establishment of new medicinal marijuana dispensaries went into effect, and is also currently in compliance with former Kern County Ordinance Code Section 5.84.010, for zoning, setbacks and building code shall be deemed to be a temporary lawful medicinal cannabis dispensary and shall obtain a temporary license from the State of California for a period of time not more than twelve (12) months beyond the effective date of the ordinance from which this section derives. The planning director shall issue a letter to the State of California authorizing the issuance of a cannabis license after satisfaction of the following: (i) confirmation that the facility complies with all requirements of former Section 5.84.010 for setbacks and appropriate zoning for a pharmacy; and (ii) an inspection has been completed by the Kern County building inspection division of the interior and exterior of the building used for the cannabis dispensary for compliance with the building code; and (iii) all work has been completed by the property owner/or tenant for any deficiencies found. Except as otherwise provided below, any such dispensary shall be allowed to operate at its current location for one (1) year from the effective date of the ordinance from which this section derives. At the expiration of one (1) year, the dispensary shall cease operations.

In the event a temporary lawful medicinal cannabis dispensary ceases operation for a period of thirty (30) consecutive days or more after the effective date of the ordinance from which this section derives, it shall be deemed to have been abandoned and shall not re-open as a medicinal cannabis dispensary.

To mitigate any substantive economic impact and to allow a dispensary owner to recoup the value of his or her investment not otherwise realized during the one (1) year of operation as provided above, the owner of a temporary lawful medicinal cannabis dispensary may apply for an extension of time within which to cease operations. The application shall be made on forms provided by the planning and natural resources department with the applicable fees and shall be filed no more than one hundred twenty (120) days and no less than ninety (90) days prior to the day the dispensary is required to cease operations. No application for extension filed less than ninety (90) days prior to the day the dispensary is required to cease operations shall be considered. The applicant shall provide all of the information required by the application. Refusal or failure to provide this information shall constitute a waiver of the right to seek an extension of time in which to operate.

The planning director shall notify the applicant of the time and place of a hearing to be held on such request before the planning director. After such hearing, the planning director shall issue a written order on the request for extension no less than sixty (60) days prior to the date scheduled for closure of the dispensary.

The planning director shall consider all relevant circumstances and factors in considering the request for an extension to the amortization period, including, but not limited to, the following to the extent they are applicable:

1.

Character of the land and land uses in the surrounding area

2.

Location of the use in relation to surrounding uses

3.

Length of time the use has been in existence and the length of time the use has been nonconforming

4.

Amount of capital investment by the owner of the dispensary in the property

5.

Amount of investment realized to date and the amount remaining

6.

Existence or nonexistence of lease obligations

7.

Removal costs directly attributable to discontinuance of the use

8.

Burden on the property owner resulting from discontinuance of the use

9.

Benefit to the public from discontinuance of the use.

The decision of the planning director shall be final ten (10) calendar days after the date of issuance of the order.

An applicant may appeal the decision of the planning director to the Kern County Board of Supervisors. The applicant may appeal the decision by filing with the planning and natural resources department a request for appeal prior to the time the decision becomes final. The appeal shall be accompanied with the fee established by the board pursuant to Section 19.06.040 of this title. The appeal shall include supporting documentation and basis for the appeal. The board of supervisors shall consider the appeal in a public session as part of one of its regularly scheduled meeting. The matter shall be set on the board agenda by the planning and natural resources department on the next available agenda. Selection of the date shall be coordinated with the applicant and written notification of the date shall be provided to the applicant. The planning and natural resources department shall consult with county counsel on the preparation of the matter for the board's consideration. A copy of the report provided to the board shall be sent to the applicant when the report is normally released to the public by the clerk of the board. A determination made by the board on the appeal shall be final.

J.

Enforcement. Violations of this section shall be subject to the enforcement provisions set forth in this subsection, as well as any other enforcement remedy available to the county under any applicable state or federal statute, the Kern County Ordinance Code, or any other lawful power the county may possess. If applicable, each day a violation of this section continues shall be considered a separate offense.

1.

Violations of this section pertaining to personal cannabis use shall be punishable according to all applicable statutes as currently stated or as otherwise amended, including but not limited to, those statutes set forth in Chapter 6, of Division 10, of the California Health and Safety Code.

2.

Any person, business, or owner or possessor of any property who violates this section pertaining to commercial cannabis activity, or who, with the lawful authority to prevent it, causes, permits or allows such a violation, is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the county jail for a time not exceeding six (6) months, or by both such fine and imprisonment.

3.

Any person, business, or owner or possessor of any property who violates this section pertaining to commercial cannabis activity, or who, with the lawful authority to prevent it, causes, permits or allows such a violation, is subject to the administrative procedures and penalties set forth in Chapter 8.54 of the Kern County Ordinance Code.

4.

Any person, business, or owner or possessor of any property who violates this section pertaining to commercial cannabis activity, or who, with the lawful authority to prevent it, causes, permits or allows such a violation, is subject to the summary abatement procedures set forth in Chapter 8.44 of the Kern County Ordinance Code.

5.

Any person, business, or owner or possessor of any property who violates this section pertaining to commercial cannabis activity, or who, with the lawful authority to prevent it, causes, permits, or allows such a violation, is subject to a civil action in the state court system as set forth in Section 19.114.080 of the Kern County Ordinance Code.

K.

Severability. If any part of this section 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 section.

(Ord. No. G-8739, § 5, 10-24-17, eff. 11-24-17)