Chapter 8.38
MEDICAL MARIJUANA – COLLECTIVE GARDENS1
Sections:
8.38.030 Collective garden permit.
8.38.050 Violation a misdemeanor.
8.38.070 Additional enforcement.
8.38.010 Purpose.
The purpose of this chapter is to enact regulations relating to collective gardens. This chapter has three purposes: (A) to protect the citizens from fraud, crime and unfair, deceptive or dishonest practices by persons engaged in or those that are a party to the production of medical marijuana; (B) to protect the residents of the city from unwanted intrusions on the privacy of their homes or businesses; and (C) to protect the health, safety, aesthetics, and general welfare of the city and its residents. (Ord. 1320 § 1, 2013)
8.38.020 Definitions.
All definitions contained within Chapters 69.50 and 69.51A RCW now or as amended are hereby incorporated and supplement definitions contained herein. Current ordinance definitions are derived from state law and shall be construed and applied in accordance with state law. In the event state law is amended with respect to such definitions, this chapter shall be construed and applied in accordance with the amended state law provisions. As used in this chapter, the following terms have the meanings set forth below:
A. “Marijuana” 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, “marijuana” 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 “marijuana” includes marijuana products and useable marijuana.
B. “Marijuana products” means products that contain marijuana or marijuana 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 “marijuana products” does not include useable marijuana. The definition of “marijuana 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.
C. “Church” means a structure or leased portion of a structure, which is used primarily for religious worship and related religious activities.
D. “Collective garden” means those gardens authorized under RCW 69.51A.085, which allows qualifying patients to assume 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 (as limited below). Qualifying patients may create and participate in collective gardens for the purpose of producing, processing, transporting and delivering cannabis for medical use subject to the following conditions:
1. No more than 10 qualifying patients may participate in a single collective garden at any time;
2. A collective garden may contain no more than 15 plants per patient up to a total of 45 plants;
3. Collective garden may contain no more than 24 ounces of useable cannabis per patient up to a total of 72 ounces of useable cannabis;
4. A copy of each qualifying patient’s valid documentation or proof of registration with the registry established in state law (now or in the future), including copy of patient’s proof of identity, must be available at all times on the premises of the collective garden; and
5. No useable cannabis from the collective garden may be delivered to anyone other than one of the qualifying patients participating in the collective garden.
E. “Designated care provider” means a person who:
1. Is 18 years of age or older;
2. 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
3. Is in compliance with the terms and conditions set forth in RCW 69.51A.040.
F. “Indoors” means within a fully enclosed and secure structure that complies with the Washington State Building Code, as adopted by the city of Zillah, which 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 two-inch by four-inch or thicker studs overlain with three-eighths-inch or thicker plywood or equivalent materials. Plastic sheeting, regardless of gauge, or similar products do not satisfy this requirement.
G. “Legal parcel” means a parcel of land for which one legal title exists.
H. “Medical or medicinal use of marijuana” means the manufacture, production, processing, possession, transportation, delivery, ingestion, application, or administration of marijuana for the exclusive benefit of a qualifying patient in the treatment of his or her terminal or debilitating medical condition.
I. “Occupancy” means the purpose for which a structure, portion of a structure, or lot is used or intended to be used. For purposes of this chapter, a change of occupancy is not intended to include a change of tenants or proprietors, but is intended to indicate a change in the type of uses.
J. “Outdoors” means any location that is not “indoors” within a fully enclosed and secure structure as defined herein.
K. “Person” means an individual or an entity.
L. “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.
M. “Process” means to handle or process marijuana in preparation for medical use.
N. “Produce” means to plant, grow, or harvest marijuana for medical use.
O. “Property owner” means the legal owner of record of the legal parcel.
P. “Public place” includes streets and alleys of incorporated cities; state or county 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, theatres, 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; buses, and other public conveyances of all kinds and character, and the depots, stops, and waiting rooms used in conjunction therewith which are open to unrestricted use and access by the public; publicly owned parks, or playgrounds; and all other places of like or similar nature to which the general public has unrestricted right of access, and which are generally used by the public.
Q. “Qualifying patient” means a person who:
1. Is a patient of a healthcare professional;
2. Has been diagnosed by that healthcare professional as having a terminal or debilitating medical condition;
3. Is a resident of the state of Washington at the time of such diagnosis;
4. Has been advised by that healthcare professional about the risks and benefits of the medical use of marijuana;
5. Has been advised by that healthcare professional that he or she may benefit from the medical use of marijuana; and
6. 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 by 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.
R. “Residential treatment facility” means a facility providing for treatment of drug and alcohol dependency.
S. “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/day care, 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, college or university.
T. “THC concentration” means percent of tetrahydrocannabinol content per weight or volume of useable marijuana or marijuana product.
U. “Terminal or debilitating medical condition” means:
1. Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or
2. Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medication; or
3. Glaucoma, either acute or chronic, limited for the purpose of this chapter to mean increased intraocular pressure unrelieved by standard treatments and medications; or
4. Chron’s disease with debilitating symptoms unrelieved by standard treatments or medications; or
5. Hepatitis C with debilitating nausea or intractable pain unrelieved by standard treatments or medications; or
6. 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
7. 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.
V. “Useable marijuana” means dried flowers of the marijuana plant having a THC concentration greater than three-tenths of one percent. Useable marijuana excludes stems, stalks, leaves, seeds, and roots. For purposes of this subsection, “dried” means containing less than 15 percent moisture content by weight. The term “useable marijuana” does not include marijuana products.
W. “Youth-oriented facility” means elementary school, middle 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. (Ord. 1320 § 1, 2013)
8.38.030 Collective garden permit.
A. Collective Garden Permit Required. In order to site and operate a collective garden, the owner of the property must obtain approval from the city for a collective garden permit. This requires the submission of a complete application (as described in subsection (H) of this section), and compliance with requirements and conditions set forth herein:
B. Location and Distance Restrictions.
1. A collective garden shall not be located in any zone except suburban residential (SR) or residential single (R-1) zones.
2. No collective garden, as defined in ZMC 8.38.020, shall be permitted outdoors.
3. No collective garden shall be located within 1,000 feet of schools, day care centers, public facilities (e.g., parks, municipal buildings, community center), and churches, as measured from edge of property line to edge of property line.
4. No collective garden shall be located anywhere the marijuana plants are visible from a public place.
5. No collective garden shall be located within 1,000 feet of another collective garden.
6. No collective garden shall be located within 3,000 feet of a residential treatment facility or any facility for drug and/or alcohol dependency.
C. Operating Standards. The following restrictions apply to the operation of collective garden:
1. Odor. The cultivation of marijuana/cannabis shall not subject residents of neighboring parcels to objectionable odors.
2. Lighting. All lights used for the cultivation of marijuana/cannabis shall be shielded and downcast or otherwise positioned in a manner that will not shine light or allow light glare beyond the internal boundaries of the structure.
3. Noise. The operation of a collective garden shall not generate noise that violates applicable adopted noise standards of the city of Zillah.
4. Signage. There shall be no exterior signage related to the collective garden.
5. Exterior Appearance. The collective garden shall be located in a structure within a fully enclosed and secure structure.
6. Fencing. The property must be fenced with at least one lockable gate. The gate must be locked at all times when a qualified patient or designated care provider is not at the facility.
7. Security. Security measures at the collective garden shall include, at a minimum, the following:
a. Robbery and burglary alarms systems (including motion sensors) which are professionally monitored and maintained in good working condition;
b. Exterior lighting that illuminates all exterior entrances;
c. Deadbolt locks on all exterior doors with all facility and storage areas locked at all times; and
d. Windows and roof hatches secured with bars on the windows so as to prevent unauthorized entry, and be equipped with latches that may be released quickly from the inside to allow exit in the event of an emergency.
8. Fire Suppression. A fire suppression system or fire monitoring system shall be installed in the facility that is sufficient to ensure the safety of members and protect the facility, as well as nearby structures.
9. Member Roster. Collective garden shall maintain and provide to police department a complete roster of all members of the collective garden with name, address and proof of authorized medical use of marijuana. The roster shall be updated within three days of any changes in the membership.
D. Delivery Only Among Members. No useable marijuana/cannabis from the collective garden may be delivered to anyone other than one of the qualifying patients participating in the collective garden. Collective garden’s designated care providers or collective garden members may not sell any marijuana/cannabis plants or useable cannabis.
E. No On-Site Sales of Paraphernalia. There shall be no on-site display or sale of paraphernalia used for the user consumption of medical marijuana/cannabis at the collective garden.
F. Nuisance. Nothing in this section (or in this chapter) shall be construed as a limitation on the city’s authority to abate any violation or public nuisance that may exist as a result of the operation of the collective garden.
G. Ownership and Limitation on Numbers. No more than one collective garden may be located on a legal parcel of land, and the parcel must be owned or leased to one of the members of the collective garden. Collective gardens wishing to be located on rented property must have written permission from the legal property owner of record including a contact address and phone number to verify permission. A qualifying patient cannot be a member of more than one collective garden, and must be a member of one collective garden for at least 30 days before transferring their membership to another collective garden. Each collective garden must maintain records of its membership for no less than three years.
H. Collective Garden License Application. A complete application for a collective garden license shall consist of the following:
1. The name and address of all qualifying patients applying for the permit and proof of their qualifying status.
2. A unique identifying number from the state of Washington driver’s license or identification card for all qualifying patient members of the collective gardens.
3. A statement acknowledging that the permit applied for will be issued in conformance with the laws of the state of Washington and that such issuance does not confer upon the members of the collective garden immunity from prosecution under federal law.
4. A statement acknowledging that the permit applied for will be issued in conformance with the laws of the state of Washington and that such issuance is nontransferable.
5. The identification of the parcel where the collective garden will be located, by street address, tax parcel number and legal description (if necessary). Applicant shall also identify applicable zoning for the parcel.
6. Application shall be signed by the owner of the property, or the owner’s authorized agent. An authorized agent must demonstrate that they have permission to sign the application on behalf of the property owner.
7. Application shall describe and locate the facility and/or any storage areas (which must be locked); light sources and measures to minimize glare to adjoining properties; procedures to minimize and/or eliminate sound and odors from the facility; location of fence with lockable gate; and proposed security measures for the facility.
8. A statement acknowledging that the permit is not valid and effective until all requirements and inspections have been completed and facility approved. Product, plants, or evidence of processing prior to issuance of permit may constitute a violation under this chapter and ban further applications from applicant or property owner.
9. A description of the proposed source of power, if any, for the collective garden, the size of any such electrical service or system, and the total demand to be placed on the system by all proposed uses on site. The statement shall be forwarded to the Washington State Department of Labor and Industry for electrical permit review. The intent is to ensure sufficient electrical system exists to accommodate the new demand. To be certified annually.
10. A statement acknowledging that the permit applied for does not allow qualifying patients to consume useable marijuana and/or marijuana products in public places. Failure to abide by this chapter may constitute a violation under this chapter. Any permit issued may be revoked.
11. A statement acknowledging that the permit applied for does grant right of entry on the facility allowing the code enforcement officer and police department to inspect the facility at any time.
12. One reproducible copy (eight and one half inches by 11 inches or 11 inches by 17 inches) or seven oversized copies of a floor plan showing the following information:
a. All property lines, labeled with dimensions.
b. All existing structures.
c. Lighting type and location of fixtures.
d. Doors. Show all door locations, fire rating (if applicable), and direction of swing, self-closing mechanism, required exit signage and lighting, etc.
e. Ventilation equipment and fixtures.
13. Issuance of Collective Garden License. Upon final approval of the application for collective garden license, city shall issue such license that is subject to payment of a $2,500 permit fee due every two years.
I. Collective Garden License Permit Procedure – Appeals.
1. Upon receipt of a complete application, code enforcement official or their designee shall schedule with the applicant an inspection or inspections of the premises to ensure compliance with this chapter. If the applicant is in compliance with this chapter, the police chief or their designee shall issue a collective garden license.
2. Appeal of the police chief’s decision must be submitted to the city clerk in writing no later than 10 business days following the police chief’s decision.
3. Administrative appeals shall be processed and conducted before the Zillah city council.
a. Hearing by City Council. The city council shall conduct a hearing on the suspension/revocation within 30 days following the filing of the appeal. The city council shall accept testimony, exhibits and argument on the appeal and shall issue a written decision.
b. Notice of Decision. The city council shall mail written notice of the decision to the licensee at the last address provided by the licensee.
c. City Council Decision – Appeal. The decision of the city council shall be final, and appealable to the appropriate courts. Such appeal must be served on the city and filed with the appropriate court within 10 days of the mailing of the decision to licensee. (Ord. 1320 § 1, 2013)
8.38.040 Enforcement.
The fire chief/building official/code enforcement or designee, and police chief or designee shall all have the authority to enforce the provisions of this chapter and terms/conditions of an issued collective garden license. Police chief and fire chief/building official/code enforcement are authorized to immediately enforce terms and conditions of a collective garden license including immediate revocation in the case of license or legal violations. (Ord. 1320 § 1, 2013)
8.38.050 Violation a misdemeanor.
Any person violating any of the provisions of this chapter is guilty of a misdemeanor. Each violation shall be punishable, as fixed by court, by a fine or by imprisonment, or by both such fine and imprisonment. (Ord. 1320 § 1, 2013)
8.38.060 Nuisance declared.
A. Public Nuisance. Any collective garden operated or maintained in violation of this chapter or any law of the city of Zillah or the state of Washington shall be, and the same is, declared to be unlawful and a public nuisance. The city attorney may, in addition to or in lieu of any other remedies set forth in this chapter, commence an action to enjoin, remove or abate such nuisance in the manner provided by law and shall take such other steps and apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such public nuisance, and restrain and enjoin any person from operating, conducting or maintaining a collective garden contrary to the provisions of this chapter. (Ord. 1320 § 1, 2013)
8.38.070 Additional enforcement.
The remedies found in this chapter are not exclusive, and the city may seek any other legal or equitable relief, including but not limited to enjoining any acts or practices which constitute or will constitute a violation of any business license ordinance or other regulations herein adopted. (Ord. 1320 § 1, 2013)
Code reviser’s note: Section 8 of Ordinance 1320 provides: “Until such time that a collective garden can meet the requirements of ZMC 17.14.040(D), Section 1 of this ordinance shall not be enforced.”