Loading...
HomeMy WebLinkAbout7/11/2012 - STAFF REPORTS - 3.A. r F C _ CC'4 r� Safe Access ^r,.rv��. 2012 JUL { 0 PPS 4* 22 psaccess.a rg Cl LS (elUrl') CITY CL ER" July 9,2012 Honorable Councilpersons and Staff, My name is Robert Van Roo and I am the President of Palm Springs Safe Access Cooperative, Inc. (Safe Access), an unpermitted Palm Springs cannabis dispensary diligently working to procure a permit that we may operate in compliance with applicable zoning codes. I understand that it is the City Council's goal to provide for an efficient and effective regulatory scheme regarding medical cannabis in Palm Springs, and I would like to take this opportunity to assure you that it is the primary goal of Safe Access to provide qualified patients with access to medical cannabis in a lawful and safe manner, and in this respect I believe the interests of Safe Access are in lines with yours. Palm Springs is not merely where Safe Access is located—it is our home. We want nothing more than to serve this community in a lawful and safe manner. With that said, I understand that you will consider an amendment to section 93.23.15 of the City's municipal code at your meeting of July 11, 2012—this will be agenda item"3.A". While I sympathize with City's regulatory issues regarding cannabis collectives there are several aspects to this piece of legislation which appear problematic to me, and I therefore urge you not to adopt it. First, the current municipal code has a permitting scheme and provisions to deal with those businesses which operate without a permit or are otherwise in violation of existing ordinances. If the permit application process is reopened at the direction of the City Council (and subject to subsequent legislation), the associated fees will generate more than enough revenue to pay for the review and issuance any new permits. Meanwhile, under current law those collectives operating without permits remain subject to the penalties of local, state, and federal law, and continue to be liable for the fees and fines associated with their unpermitted operation. Second, California Government Code section 36901 limits the fines associated with violation of a municipal ordinance to one thousand dollars. Here, the proposed amendment to the City's municipal code would impose fines in excess of this statutory cap. Hence, this amendment would appear to violate California law. p At'L 1 o'1'A.( I lC�f✓i !Gz,l .t ~1-6 wL 3,, �F -7 Al i-> 2 Third, I am concerned that the contemplated amendment to section 93.23.15 could be construed by some as discriminatory under applicable state law. Reading the proposed language in the context of those provisions of the code which penalize unpermitted business which do not distribute cannabis, it would appear that that the cannabis collectives, though similarly situated to these other businesses, will be treated quite differently from them. Indeed,this amendment would seem to single out cannabis collectives for significantly harsher treatment than other similar businesses. Fourth and finally, agenda item "3.A" contains a determination of by the City Council that only three permits should be issued to operate medical cannabis collectives in Palm Springs. I respectfully suggest that this determination is flawed and merits further review. For example, Section 2 of the Urgency Ordinance underlying this proposal states that each of these three permitted dispensaries is projected to provide medical cannabis access to fifteen thousand patients. This means that if each patient patronized his or her dispensary once a week, and if that dispensary was open 9 AM to 10 PM seven days a week, then it would be responsible for providing safe access to medical cannabis to approximately 3patients per minute. I cannot see how this is"more than adequate to provide reasonable access to medical cannabis to the residents" of Pahn Springs. In point of fact, it seems quite inadequate, especially when one considers that the foregoing example does not provide for bursts of consumer activity on a given day, or the logistics of having that many patients in one place in conformity with applicable safety codes. I believe that this piece of legislation is a response to legitimate concerns regarding the regulation of cannabis collectives in Palm Springs. However as it is written, I believe it fails to account for the efficacy of the current regulatory scheme, for the various overlays of state law as they apply to this issue, and for the high demand for safe access by qualified patients in this community. Hence,though it is obviously the product of much thought and hard work, I urge you not to adopt the piece of legislation designated as item "3.A" on the July 11, 2012 City Council meeting agenda. Respectfully Yours, Robert L. Van Roo President Palm Springs Safe Access Cooperative, Inc. ORDINANCE NO. AN URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 3.52.030 AND SUBSECTIONS K AND L OF SECTION 93.23.15 OF, AND ADDING SUBSECTION K TO SECTION 93.23.15 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO ENFORCEMENT OF THE CITY'S MEDICAL CANNABIS REGULATORY ORDINANCE. (415THS VOTE REQUIRED.) City Attomey's Summary This Urgency Ordinance requires unpermitted collectives and cooperatives to disclose their unpermitted status to the public and provides additional administrative enforcement options to the City in addressing violations of the City's Medical Cannabis Regulatory Ordinance, including posting of property, issuance of abatement orders, and the recordation of liens. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ORDAINS: Section 1. This Urgency Ordinance is adopted pursuant to Section 312 of the Charter of the City of Palm Springs, California. Section 2. The City Council finds, determines, and declares that this Urgency Ordinance is necessary to ensure the timely, cost-effective, and efficient enforcement of the City's Medical Cannabis Regulatory Ordinance (PSMC Sec. 93.23.15). The California Fourth Appellate District Court in the case of City of Palm Springs v. The Holistic Collective (Case No. E053736), validated the City's Medical Cannabis Regulatory Ordinance and determined that the City lawfully adopted this ordinance and that the City has the authority under law to enforce the ordinance. The City Council has determined that the City can and should only permit a limited number of medical cannabis cooperatives or collectives to operate in the City in furtherance of the State of California's Compassionate Use Act. The City has experienced a great increase in the number of marijuana dispensaries operating in the City without compliance with the provisions of the City's Medical Cannabis Regulatory Ordinance. These dispensaries are operating without a permit under the Code and outside the parameters of the City's regulatory program. The ability of the City to initiate and timely implement the enforcement of its Medical Cannabis Regulatory Ordinance is necessary to ensure the preservation and protection of the residents of the City, bona fide patients and caregivers recognized under the Compassionate Use Act, and the medical cannabis cooperatives and collectives that have complied with the City's Medical Cannabis Regulatory Ordinance and have been issued permits to operate as such within the City. 1 �•\\•\'� Iklrv� 3 A Section 3. Section 3.52 of the Palm Springs Municipal Code is amended to read: 3.52.030 Handling where legal impediments exist to conducting of business. Whenever it appears to the collector that an application for a business license involves a proposed business activity for which other permit or licensing requirements are applicable under local or state or federal laws, ordinances or regulations before such business activity could lawfully be conducted in the city or at the particular location proposed, or involves a proposed business activity which could not lawfully be conducted in the city or at the particular location proposed, the collector shall so inform the applicant, and ascertain whether, in view of such circumstances, the applicant desires to withdraw the application pending removal of the legal impediments, if such removal be possible. In the event the applicant nonetheless insists upon submitting the application, the collector shall accept the proferred tax payment, and issue a receipt therefor which shall contain language clearly stating that such receipt is not to be deemed in any way an official sanction for the conducting of the proposed business. Every person, corporation, partnership, or association issued a receipt under the provisions of this Section shall display such receipt in a prominent place in its business where it is clearly visible to all members of the public entering the premises. Section 4. Paragraphs 10 and 19 of Subsection K of Section 93.23.15 of the Palm Springs Municipal Code are amended to read: 10. Signage for the cooperative or collective shall be limited to name of business and its status as a permitted cooperative or collective pursuant to this Section only and no advertising of the goods and/or services shall be permitted. Each cooperative or collective shall post a sign or notice conspicuously at each point of public access into the cooperative or collective stating that the cooperative or collective is a permitted cooperative or collective under the provisions of this Section. 19. Fully comply with and meet all operating criteria required pursuant to the Compassionate Use Act, state law, the Attorney General Guidelines, the provisions of the Palm Springs Municipal Code, including without limitation, this Section, and any specific, additional operating procedures and measures as may be imposed as conditions of approval of the regulatory permit, and all requirements set forth in the covenant as described in Subsection J, in order to ensure that the operation of the cooperative or collective is consistent with the protection of the health, safety, and welfare of the community, qualified patients, and primary caregivers, and will not adversely affect surrounding uses. Section 5. The title of Subsection L of Section 93.23.15 of the Palm Springs Municipal Code is amended to read: "Enforcement of Medical Cannabis Cooperative or Collective Permits." No other provision of Subsection L is affected by this amendment. 2 Section 6. Subsection N is added to Section 93.23.15 of the Palm Springs Municipal Code to read: N. Abatement Orders and Civil Penalties. 1. Any person, partnership, association, corporation, fiduciary, or other entity that owns, leases, occupies, controls, or manages any building, property, or occupancy and causes, permits, or maintains a violation of the provisions of this Section, including without limitation the provisions of Subsections A and B hereof, or that falsely claims in any advertising of any kind, including without limitation, signs or handbills, that such person, association, corporation, fiduciary, or other entity is permitted as a medical cannabis cooperative or collective in the City, shall be subject to an abatement order issued pursuant to the provisions of this Subsection and shall be liable for administrative penalties as follows: (a) Each party subject to an abatement order pursuant to this Subsection, as determined by the City Manager, shall pay an administrative penalty of one thousand ($1,000.00) dollars. (b) In the event that a violation of this Section addressed by an abatement order has not been abated, cured, remedied, and/or eliminated to the reasonable satisfaction the City Manager by the tenth (10th) day after the issuance of the abatement order, each party subject to said abatement order shall pay a supplemental administrative penalty of two thousand five hundred ($2,500.00) dollars. (c) In the event that a violation of this Section addressed by an abatement order has not been abated, cured, remedied and/or eliminated to the reasonable satisfaction of the City Manager by the thirtieth (30th) day after the issuance of an abatement order, each party subject to said abatement order shall pay a second supplemental administrative penalty of five thousand ($5,000.00) dollars for each calendar week, or portion thereof, the building and/or occupancy thereof is in violation of the provisions of this Section. 2. The City Manager may issue an Abatement Order for violations of the provisions of this Section. The Abatement Order shall contain: (a) The street address and assessor's parcel number of the premises on which the building or structure is located, sufficient for identification; (b) Reference to all code sections violated with a brief and concise description of the conditions found; (c) A statement of the required action to permanently correct outstanding violations; 3 (d) A statement enumerating the action that can be taken by the City should the responsible party or parties fail to comply with the terms and deadlines as prescribed in the Abatement Order. (e) A statement advising that any person having any record title or interest in the building may appeal Abatement Order served, provided the appeal is made in writing, pursuant to and within the time frames provided in this Subsection. Failure to file an appeal in accordance with this Subsection shall constitute a waiver of the right to an administrative hearing and adjudication of the Abatement Order or any portion thereof. 3. The Abatement Order, or any amended Abatement Order, shall be served on the following parties: (a) The record owner of the property; and, (b) The holder of a mortgage, deed of trust, or other lien on the property, if recorded or otherwise actually known to the City Manager at the time the Abatement Order is served. (c) If different than (1) or (2) above, the tenant of any building or structure or the operator of any marijuana or cannabis dispensary activity within such building or structure. 4. Service shall be completed in the following manner: (a) Posting of the Abatement Order conspicuously on or in front of the property and at each point of public access into the building or structure. It is a misdemeanor to remove or deface any Abatement Order posted on the property. (b) Simultaneously, the same notice shall be sent by regular mail and certified mail (return receipt requested). If a notice that is sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned. Service by certified or regular mail in the manner described above shall be effective on the date of mailing; or (c) Personal service; (d) If the City Manager is unable to effectively serve the Abatement Order as provided in this Subsection, the City Manager may publish the Abatement Order in a newspaper of general circulation (as defined in Govt. Code § 6000), published in this jurisdiction. Publication of the Abatement Order pursuant to this Subsection shall be for five (5) days. The period of notice commences upon the first day of publication and terminates at the end of the fifth day, including therein the first day. Publication shall be made on each day on which the newspaper is 4 published during the period. Service is deemed complete on the last day of publication. 5. The failure of any person with an interest in the property to receive any notice served in accordance with this Subsection shall not affect the validity of any proceedings taken under this Section. 6. Proof of service of the Notice and Order shall be documented at the time of service by a declaration under penalty of perjury, executed by the person effecting service, declaring the time and manner in which service was made. If service is effectuated by certified mail, the declaration, together with any receipt card returned in acknowledgment of receipt by certified mail, shall be affixed to the copy of the Notice and Order retained by the Building Official. 7. Upon receipt of an Abatement Order, each responsible party must take one of the following actions to avoid additional penalties: (a) Correct the violation, pay the corresponding fine(s), if any, and contact the City Manager to request a re-inspection, prior to the compliance date specified in the abatement order; or (b) Request a hearing to appeal the Abatement Order pursuant to Paragraph 8 of this Subsection N. 8. A responsible party receiving an Abatement Order may appeal such order within seven (7) calendar days from the date the Abatement Order is deemed served. (a) The appeal must be in writing and must indicate the appellant's full name and mailing address. It must be accompanied by the penalty amount and appeal fee which shall be set by resolution of the City Council, must specify the basis for the appeal in detail, and must be filed with the City Clerk's Office. If the appeal deadline falls on a day City Hall is closed, then the deadline shall be extended until the next regular business day. (b) As soon as practicable after receiving the written notice of appeal, the City Manager shall fix a date, time, and place for the hearing before a hearing officer pursuant to the provisions of Section 1.06.060 of this Code. Written notice of the time and place for the hearing may be served by first class mail, at the mailing address indicated on the written appeal. Service of the appeal notice must be made at least seven (7) calendar days prior to the date of the hearing to the party appealing the administrative citation. (c) The failure of any person with an interest in the property, or other responsible party, to receive such properly addressed notice of the hearing shall not affect the validity of any proceedings under this Section. Service by first class mail, postage prepaid shall be effective on the date of mailing. 5 (d) Failure of any responsible party to file an appeal in accordance with the provisions of this Section shall constitute a waiver of that responsible party's rights to administrative determination of the merits of the Abatement Order and the amount of the penalty. If no appeal is filed, the Abatement Order shall be deemed a final administrative order and a failure to exhaust the responsible party's administrative remedies. 9. At any time after the Abatement Order becomes final, the City Council may cause the Abatement Order and a notice of lien to be recorded with the County Recorder. The final Abatement Order and lien shall, at a minimum, identify the record owner and/or possessor of the property and set forth the last known address of the record owner and/or possessor, the date on which the penalty was imposed, a description of the real property subject to the lien, and the amount of the penalty. 10. This Subsection provides a civil penalty remedy that is in addition to all other legal remedies, criminal or civil, which may be pursued by the City Manager or the City Attorney to address any violation of this Section. The civil penalty imposed pursuant to the provisions of this section shall be in lieu of the administrative citation penalties imposed pursuant to the provisions of Section 1.06.040 of this Code. Section 7. This urgency ordinance shall take effect immediately upon its adoption by a four-fifths (4/5) vote of the City Council. This urgency ordinance shall continue in effect from the date of its adoption and until the effective date of Ordinance No. _, and shall thereafter be of no further force and effect. Section 8. If any section or provision of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, then the provisions of Section 1 through 3, inclusive, of this Ordinance shall be deemed invalid and unenforceable and the dispensing of cannabis for any reason in any zone shall be deemed a prohibited use under the City's Zoning Code. The City Council hereby declares that it would not have adopted this Ordinance if any of the sections or provisions thereof may be declared invalid or unconstitutional or contravened via legislation. 6 Section 9. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or the summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect immediately. PASSED, APPROVED, AND ADOPTED this day of 2012. STEPHEN P. POUGNET, MAYOR ATTEST: JAMES THOMPSON, CITY CLERK APPROVED AS TO FORM: DOUGLAS HOLLAND, CITY ATTORNEY 7 �o pALM SA9 iy c+ V N # C,q</FORN�P CITY COUNCIL STAFF REPORT DATE: July 11, 2012 LEGISLATIVE SUBJECT: INTRODUCTION AND FIRST READING OF ORDINANCE NO. _, "AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 3.52.030 AND SUBSECTIONS K AND L OF SECTION 93.23.15 OF, AND ADDING SUBSECTION K TO SECTION 93.23.15 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO ENFORCEMENT OF THE CITY'S MEDICAL CANNABIS REGULATORY ORDINANCE;" AND ADOPTION OF ORDINANCE NO. _ "AN URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 3.52.030 AND SUBSECTIONS K AND L OF SECTION 93.23.15 OF, AND ADDING SUBSECTION K TO SECTION 93.23.15 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO ENFORCEMENT OF THE CITY'S MEDICAL CANNABIS REGULATORY ORDINANCE. (4/5THS VOTE REQUIRFD.)" FROM: David H. Ready, City Manager BY: Douglas Holland, City Attorney SUMMARY The City Council has requested a review of the City's Medical Cannabis Regulatory Ordinance and suggestions regarding alternative enforcement options and additional requirements to ensure compliance with the City's Code. In addition, Council Member Lewin requested that certain posting requirements be reviewed to ensure that the residents, public, and patients can easily determine which cannabis cooperatives or collectives are operating compliance with the City's Code and the marijuana dispensaries that are unpermitted and operating in violation of the law. RECOMMENDATION: 1. Waive reading and introduce Ordinance No. _, "AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 3.52.030 AND SUBSECTIONS K AND L OF SECTION 93.23.15 OF, AND ADDING SUBSECTION K TO SECTION 93.23.15 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO ENFORCEMENT OF THE CITY'S MEDICAL CANNABIS REGULATORY ORDINANCE" 2. Waive reading and adopt Ordinance No. , "AN URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 3.52.030 ITEM NO. City Council Staff Report July 11, 2012 Case: Medical Cannabis Enforcement Ordinances Page 2 of 2 AND SUBSECTIONS K AND L OF SECTION 93.23.15 OF, AND ADDING SUBSECTION K TO SECTION 93.23.15 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO ENFORCEMENT OF THE CITYIS MEDICAL CANNABIS REGULATORY ORDINANCE. (4/5THS VOTE REQUIRED.)" DISCUSSION: Consistent with the direction of Council, City staff has prepared ordinances that will implement additional enforcement options and requirements. Current provisions of the City's business license code provides that the City's Finance Director (in his capacity as the City's tax collector) is required to issue a receipt for payment of business license taxes to any business that is not operating in compliance with the requirements of the City's municipal code, to include a statement on the receipt that the receipt is not to be deemed as official sanction for the conducting of the business. The proposed ordinance would require that the receipt must be displayed in a prominent place in the business where it is clearly visible to all members of the public who enter the premises. The proposed ordinance also requires that each permitted medical cannabis collective or cooperative must post a sign or notice in a conspicuous location near each point of public access to the cooperative or collective advising the public that such cooperative or collective is permitted and in compliance with the City's Medical Cannabis Regulatory Ordinance. The ordinance also specifically includes reference to the City's Municipal 'Code as a body of laws for which each permitted cooperative or collective is required to comply. The ordinance also establishes an abatement process coupled with administrative fines. Any marijuana dispensary that is operating in the city without complying, with the City's Medical Cannabis Regulatory Ordinance and without a permit under such Ordinance, will be subject to this abatement process. We note that the Fourth District Court of Appeals has recently upheld the City's Medical Cannabis Regulatory Ordinance and determined that the City lawfully adopted the ordinance and has the authority to enforce it. [City of Palm Springs v. The Hollistic Collective (Case No. E053736).] This abatement process also includes civil penalties in the amount of $1000 for the first notice, $2,500 for a second notice, and $5,000 per week for each successive notice. The abatement process also includes City posting of the Abatement Order on the front of the property and at each point of public access. Defacing or removing the posted Abatement Order is a misdemeanor. FISCAL PACT: It is anticipated that current code enforcement budgets of affected depa a will cover�ryq�costs for implementation of the above programs. 77 �� Douglas tKIland, City Attorney David H. Ready, Cjt ager Attachments: 1. Proposed Ordinance No. 2. Proposed Urgency Ordinance No. 02 ORDINANCE NO. AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 3.52.030 AND SUBSECTIONS K AND L OF SECTION 93.23.15 OF, AND ADDING SUBSECTION K TO SECTION 93.23.15 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO ENFORCEMENT OF THE CITY'S MEDICAL CANNABIS REGULATORY ORDINANCE. CityAttorney's Summary This Ordinance requires unpermitted collectives and cooperatives to disclose their unpermitted status to the public and provides additional administrative enforcement options to the City in addressing violations of the City's Medical Cannabis Regulatory Ordinance, including posting of property, issuance of abatement orders, and the recordation of liens. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ORDAINS: Section 1. Section 3.52 of the Palm Springs Municipal Code is amended to read: 3.52.030 Handling where legal impediments exist to conducting of;business. Whenever it appears to the collector that an application for a business license involves a proposed business activity for which other permit or licensing requirements are applicable under local or state or federal laws, ordinances or regulations before such business activity could lawfully be conducted in the city or at the particular location proposed, or involves a proposed business activity which could not lawfully be conducted in the city or at the particular location proposed, the collector shall so inform the applicant, and ascertain whether, in view of such circumstances, the applicant desires to withdraw the application pending removal of the legal impediments, if such removal be possible. In the event the applicant nonetheless insists upon submitting the application, the collector shall accept the proferred tax payment, and issue a receipt therefor which shall contain language clearly stating that such receipt is not to be deemed in any way an official sanction for the conducting of the proposed business. Every person, corporation, partnership, or association issued a receipt under the provisions of this Section shall display such receipt in a prominent place in its business where it is clearly visible to all members of the public entering the premises. Section 2. Paragraphs 10 and 19 of Subsection K of Section 93.23.15 of the Palm Springs Municipal Code are amended to read: 03 10. Signage for the cooperative or collective shall be limited to name of business and its status as a permitted cooperative or collective pursuant to this Section only and no advertising of the goods and/or services shall be permitted. Each cooperative or collective shall post a sign or notice conspicuously at each point of public access into the cooperative or collective stating that the cooperative or collective is an permitted cooperative or collective under the provisions of this Section. 19. Fully comply with and meet all operating criteria required pursuant to the Compassionate Use Act, state law, the Attorney General Guidelines, the provisions of the Palm Springs Municipal Code, including without limitation, this Section, and any specific, additional operating procedures and measures as may be imposed as conditions of approval of the regulatory permit, and all requirements set forth in the covenant as described in Subsection J, in order to ensure thlat the operation of the cooperative or collective is consistent with the protection of the health, safety, and welfare of the community, qualified patients, and primary caregivers, and will not adversely affect surrounding uses. Section 3. The title of Subsection L of Section 93.23.15 of the Palm Springs Municipal Code is amended to read: "Enforcement of Medical Cannabis Cooperative or Collective Permits." No other provision of Subsection L is affected by this amendment. Section 4. Subsection N is added to Section 93.23.15 of the Palm Springs Municipal Code to read: N. Abatement Orders and Civil Penalties. 1. Any person, partnership, association, corporation, fiduciary, or other entity that owns, leases, occupies, controls, or manages any building, property, or occupancy and causes, permits, or maintains a violation of the provisions of this Section, including without limitation the provisions of Subsections A and B hereof, or that falsely claims in any advertising of any kind, including without limitation, signs or handbills, that such person, association, corporation, fiduciary, or other entity is permitted as a medical cannabis cooperative or collective in the City, shall be subject to an abatement order issued pursuant to the provisions of this Subsection and shall be liable for administrative penalties as follows: (a) Each party subject to an abatement order pursuant to this Subsection, as determined by the City Manager, shall pay an administrative penalty of one thousand ($1,000.00) dollars. (b) In the event that a violation of this Section addressed by an abatement order has not been abated, cured, remedied, and/or eliminated to the reasonable satisfaction the City Manager by the tenth (10th) day after the issuance of the abatement order, each party subject to said abatement order shall pay a 2 04 supplemental administrative penalty of two thousand five hundred ($2,500.00) dollars. (c) In the event that a violation of this Section addressed by an abatement order has not been abated, cured, remedied and/or eliminated to the reasonable satisfaction of the City Manager by the thirtieth (301") day ai'ter the issuance of an abatement order, each party subject to said abatement order shall pay a second supplemental administrative penalty of five thousand ($5,000.00) dollars for each calendar week, or portion thereof, the building and/or occupancy thereof is in violation of the provisions of this Section. 2. The City Manager may issue an Abatement Order for violations of the provisions of this Section. The Abatement Order shall contain: (a) The street address and assessor's parcel number of the premises on which the building or structure is located, sufficient for identification; (b) Reference to all code sections violated with a brief and iconcise description of the conditions found; (c) A statement of the required action to permanently correct outstanding violations; (d) A statement enumerating the action that can be taken by the City should the responsible party or parties fail to comply with the terms and deadlines as prescribed in the Abatement Order. (e) A statement advising that any person having any record title or interest in the building may appeal Abatement Order served, provided the appeal is made in writing, pursuant to and within the time frames provided in this Subsection. Failure to file an appeal in accordance with this Subsection shall constitute a waiver of the right to an administrative hearing and adjudication of the Abatement Order or any portion thereof. 3. The Abatement Order, or any amended Abatement Order, shall be served on the following parties: (a) The record owner of the property; and, (b) The holder of a mortgage, deed of trust, or other lien on the property, if recorded or otherwise actually known to the City Manager at the time the Abatement Order is served. 3 05 (c) If different than (1) or (2) above, the tenant of any building or structure or the operator of any marijuana or cannabis dispensary activity within such building or structure. 4. Service shall be completed in the following manner: (a) Posting of the Abatement Order conspicuously on or in front of the property and at each point of public access into the building or structure. It is a misdemeanor to remove or deface any Abatement Order posted on the property. (b) Simultaneously, the same notice shall be sent by regular mail and certified mail (return receipt requested). If a notice that is sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned. Service by certified or regular mail in the manner described above shall be effective on the date of mailing; or (c) Personal service; (d) If the City Manager is unable to effectively serve the Abatement Order as provided in this Subsection, the City Manager may publish the Abatement Order in a newspaper of general circulation (as defined in Govt. Code § 6000), published in this jurisdiction. Publication of the Abatement Order pursuant to this Subsection shall be for five (5) days. The period of notice commences upon the first day of publication and terminates at the end of the fifth day, including therein the first day. Publication shall be made on each day on which the newspaper is published during the period. Service is deemed complete on the last day of publication. 5. The failure of any person with an interest in the property to receive any notice served in accordance with this Subsection shall not affect the validity of any proceedings taken under this Section. 6. Proof of service of the Notice and Order shall be documented at the time of service by a declaration under penalty of perjury, executed by the person effecting service, declaring the time and manner in which service was made. If service is effectuated by certified mail, the declaration, together with any receipt card returned in acknowledgment of receipt by certified mail, shall be affixed to the copy of the Notice and Order retained by the Building Official. 7. Upon receipt of an Abatement Order, each responsible party must take one of the following actions to avoid additional penalties: 4 0G (a) Correct the violation, pay the corresponding fine(s), if any, and contact the City Manager to request a re-inspection, prior to the compliance date specified in the abatement order; or (b) Request a hearing to appeal the Abatement Order pursuant to Paragraph 8 of this Subsection N. 8. A responsible party receiving an Abatement Order may appeal such order within seven (7) calendar days from the date the Abatement Order is deemed served. (a) The appeal must be in writing and must indicate the appellant's full name and mailing address. It must be accompanied by the penalty amount and appeal fee which shall be set by resolution of the City Council, must specify the basis for the appeal in detail, and must be filed with the City Clerk's Office. If the appeal deadline falls on a day City Hall is closed, then the deadline shall be extended until the next regular business day. (b) As soon as practicable after receiving the written notice of appeal, the City Manager shall fix a date, time, and place for the hearing before a hearing officer pursuant to the provisions of Section 1.06.060 of this Code. Written notice of the time and place for the hearing may be served by first class mail, at the mailing address indicated on the written appeal. Service of the appeal notice must be made at least seven (7) calendar days prior to the date of the hearing to the party appealing the administrative citation. (c) The failure of any person with an interest in the property, or other responsible party, to receive such properly addressed notice of the hearing shall not affect the validity of any proceedings under this Section!. Service by first class mail, postage prepaid shall be effective on the date of mailing. (d) Failure of any responsible party to file an appeal in accordance with the provisions of this Section shall constitute a waiver of that responsible party's rights to administrative determination of the merits of the Abatement Order and the amount of the penalty. If no appeal is filed, the Abatement Order shall be deemed a final administrative order and a failure to exhaust the responsible parry's administrative remedies. 9. At any time after the Abatement Order becomes final, the City Council may cause the Abatement Order and a notice of lien to be recorded with the County Recorder. The final Abatement Order and lien shall, at a minimum, identify the record owner and/or possessor of the property and set forth the last known address of the record owner and/or possessor, the date on which the penalty was imposed, a description of the real property subject to the lien, and the amount of the penalty. s of, 10. This Subsection provides a civil penalty remedy that is in addition to all other legal remedies, criminal or civil, which may be pursued by the City Manager or the City Attorney to address any violation of this Section. The civil penalty imposed pursuant to the provisions of this section shall be in lieu of the administrative citation penalties imposed pursuant to the provisions of Section 1.06.040 of this Code. Section 5. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or the summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect thirty (30) days after passage. PASSED, APPROVED, AND ADOPTED this day of 2012. STEPHEN P. POUGNET, MAYOR ATTEST: JAMES THOMPSON, CITY CLERK APPROVED AS TO FORM: DOUGLAS HOLLAND, CITY ATTORNEY 6 0� ORDINANCE NO. AN URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION .52.030 AND SUBSECTIONS K AND L OF SECTION 93.23.15 OF, AND ADDING SUBSECTION K TO SECTION 93.23.15 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO ENFORCEMENT OF THE CITY'S MEDICAL CANNABIS REGULATORY ORDINANCE. (4/5THS VOTE REQUIRED.) CityAttorney's Summary This Urgency Ordinance requires unpermitted collectives and cooperatives to disclose their unpermitted status to the public and provides additional administrative enforcement options to the City in addressing violations of the City's Medical Cannabis Regulatory Ordinance, including posting of property, issuance of abatement orders, and the recordation of liens. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ORDAINS: Section 1. This Urgency Ordinance is adopted pursuant to Section 312 of the Charter of the City of Palm Springs, California. Section 2. The City Council finds, determines, and declares that this Urgency Ordinance is necessary to ensure the timely, cost-effective, and efficient enforcement of the City's Medical Cannabis Regulatory Ordinance (PSMC Sec. 93.23.15). The California Fourth Appellate District Court in the case of City of (Palm Springs v. The Holistic Collective (Case No. E053736, validated the City's Medical Cannabis Regulatory Ordinance and determined that the City lawfully adopted this ordinance and that the City has the authority under law to enforce the ordinance. The City Council has determined that the City can and should only permit three medical cannabis cooperatives or collectives to operate in the City in furtherance of the State of California's Compassionate Use Act. The ratio of one such cooperative or collective for approximately every 15,000 persons is more than adequate to provide reasonable medical cannabis services to the residents of the City. The City has experienced a great increase in the number of marijuana dispensaries operating in the City without compliance with the provisions of the City's Medical Cannabis Regulatory Ordinance. These dispensaries are operating without a permit under the Code, outside the parameters of the City's regulatory program, and as parasites exploiting the willingness and desire of this City to authorize and permit medical cannabis collectives and cooperatives. The ability of the City to initiate and timely implement the enforcement of its Medical Cannabis Regulatory Ordinance is necessary to ensure)the preservation and protection of the residents of the City, bona fide patients and caregivers recognized under the Compassionate Use Act, and the medical cannabis cooperatives and 1 09 collectives that have complied with the City's Medical Cannabis Regulatory Ordinance and have been issued permits to operate as such within the City. Section 3. Section 3.52 of the Palm Springs Municipal Code is amended to read: 3.52.030 Handling where legal impediments exist to conducting of business. Whenever it appears to the collector that an application for a business license involves a proposed business activity for which other permit or licensing requirements are applicable under local or state or federal laws, ordinances, or regulations before such business activity could lawfully be conducted in the city or at the particular location proposed, or involves a proposed business activity which could not lawfully be conducted in the city or at the particular location proposed, the collector shall so inform the applicant, and ascertain whether, in view of such circumstances, the applicant desires to withdraw the application pending removal of the legal impediments, if such removal be possible. In the event the applicant nonetheless insists upon submitting the application, the collector shall accept the proferred tax payment, and issue a receipt therefor which shall contain language clearly stating that such receipt is not to be deemed in any way an official sanction for the conducting of the proposed business. Every person, corporation, partnership, or association issued a receipt under the provisions of this Section shall display such receipt in a prominent place in its business where it is clearly visible to all members of the public entering the premises. Section 4. Paragraphs 10 and 19 of Subsection K of Section 93.23.15 of the Palm Springs Municipal Code are amended to read: 10. Signage for the cooperative or collective shall be limited to name of business and its status as a permitted cooperative or collective pursuant toi this Section only and no advertising of the goods and/or services shall be permitted. Each cooperative or collective shall post a sign or notice conspicuously at each Ipoint of public access into the cooperative or collective stating that the cooperative or collective is an permitted cooperative or collective under the provisions of this Section. 19. Fully comply with and meet all operating criteria required pursuant to the Compassionate Use Act, state law, the Attorney General Guidelines, the provisions of the Palm Springs Municipal Code, including without limitation, this Section, and any specific, additional operating procedures and measures as may be imposed as conditions of approval of the regulatory permit, and all requirements set forth in the covenant as described in Subsection J, in order to ensure that the operation of the cooperative or collective is consistent with the protection of the health, safety, and welfare of the community, qualified patients, and primary caregivers, and will not adversely affect surrounding uses. Section 5. The title of Subsection L of Section 93.23.15 of the Palm Springs Municipal Code is amended to read: "Enforcement of Medical Cannabis Cooperative or Collective Permits." No other provision of Subsection L is affected by this amendment. 2 10 Section 6. Subsection N is added to Section 93.23.15 of the Palm Springs Municipal Code to read: N. Abatement Orders and Civil Penalties. 1. Any person, partnership, association, corporation, fiduciary, or other entity that owns, leases, occupies, controls, or manages any building, property, or occupancy and causes, permits, or maintains a violation of the provisions of this Section, including without limitation the provisions of Subsections A and B hereof, or that falsely claims in any advertising of any kind, including without limitation, signs or handbills, that such person, association, corporation, fiduciary, or other entity is permitted as a medical cannabis cooperative or collective in the City, shall be subject to an abatement order issued pursuant to the provisions of this Subsection and shall be liable for administrative penalties as follows: (a) Each party subject to an abatement order pursuant to this Subsection, as determined by the City Manager, shall pay an administrative penalty of one thousand ($1,000.00) dollars. (b) In the event that a violation of this Section addressed by an abatement order has not been abated, cured, remedied, and/or eliminated to the reasonable satisfaction the City Manager by the tenth (10th) day after the issuance of the abatement order, each party subject to said abatement order shall pay a supplemental administrative penalty of two thousand five hundred ($2,500.00) dollars. (c) In the event that a violation of this Section addressed by an abatement order has not been abated, cured, remedied and/or eliminated to the reasonable satisfaction of the City Manager by the thirtieth (30th) day after the issuance of an abatement order, each party subject to said abatement order shall pay a second supplemental administrative penalty of five thousand ($5,000.00) dollars for each calendar week, or portion thereof, the building and/or occupancy thereof is in violation of the provisions of this Section. 2. The City Manager may issue an Abatement Order for violations of the provisions of this Section. The Abatement Order shall contain: (a) The street address and assessor's parcel number of the premises on which the building or structure is located, sufficient for identification; (b) Reference to all code sections violated with a brief and concise description of the conditions found; (c) A statement of the required action to permanently correct outstanding violations; 3 l � (d) A statement enumerating the action that can be taken:by the City should the responsible party or parties fail to comply with the terms and deadlines as prescribed in the Abatement Order. (e) A statement advising that any person having any record title or interest in the building may appeal Abatement Order served, provided the appeal is made in writing, pursuant to and within the time frames provided in this Subsection. Failure to file an appeal in accordance with this Subsection shall constitute a waiver of the right to an administrative hearing and adjudication of the Abatement Order or any portion thereof. 3. The Abatement Order, or any amended Abatement Order, shall be served on the following parties: (a) The record owner of the property; and, (b) The holder of a mortgage, deed of trust, or other lien on the property, if recorded or otherwise actually known to the City Manager at the time the Abatement Order is served. (c) If different than (1) or (2) above, the tenant of any building or structure or the operator of any marijuana or cannabis dispensary activity within such building or structure. 4. Service shall be completed in the following manner: (a) Posting of the Abatement Order conspicuously on or in front of the property and at each point of public access into the building or structure. It is a misdemeanor to remove or deface any Abatement Order posted on the property. (b) Simultaneously, the same notice shall be sent by regular mail and certified mail (return receipt requested). If a notice that is sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned. Service by certified or regular mail in the manner described above shall be effective on the date of mailing; or (c) Personal service; (d) If the City Manager is unable to effectively serve the Abatement Order as provided in this Subsection, the City Manager may publish the Abatement Order in a newspaper of general circulation (as defined in Govt. Code § 6000), published in this jurisdiction. Publication of the Abatement Order pursuant to this Subsection shall be for five (5) days. The period of notice commences upon the first day of publication and terminates at the end of the fifth day, including therein the first day. Publication shall be made on each day on which the newspaper is 4 12 published during the period. Service is deemed complete on the last day of publication. 5. The failure of any person with an interest in the property to receive any notice served in accordance with this Subsection shall not affect the validity of any proceedings taken under this Section. 6. Proof of service of the Notice and Order shall be documented at the time of service by a declaration under penalty of perjury, executed by the person effecting service, declaring the time and manner in which! service was made. If service is effectuated by certified mail, the declaration, together with any receipt card returned in acknowledgment of receipt by certified mail, shall be affixed to the copy of the Notice and Order retained by the Building Official. 7. Upon receipt of an Abatement Order, each responsible party must take one of the following actions to avoid additional penalties: (a) Correct the violation, pay the corresponding fine(s), if any, and contact the City Manager to request a re-inspection, prior to the compliance date specified in the abatement order; or (b) Request a hearing to appeal the Abatement Order pursuant to Paragraph 8 of this Subsection N. 8. A responsible party receiving an Abatement Order may appeal such order within seven (7) calendar days from the date the Abatement Order is deemed served. (a) The appeal must be in writing and must indicate the appellant's full name and mailing address. It must be accompanied by the penalty amount and appeal fee which shall be set by resolution of the City Council, must specify the basis for the appeal in detail, and must be filed with the City Clerk's Office. If the appeal deadline falls on a day City Hall is closed, then the deadline shall be extended until the next regular business day. (b) As soon as practicable after receiving the written notice of appeal, the City Manager shall fix a date, time, and place for the hearing before a hearing officer pursuant to the provisions of Section 1.06.060 of this Code. Written notice of the time and place for the hearing may be served by first class mail, at the mailing address indicated on the written appeal. Service of the appeal notice must be made at least seven (7) calendar days prior to the date of the hearing to the party appealing the administrative citation. (c) The failure of any person with an interest in the property, or other responsible party, to receive such properly addressed notice of the hearing shall not affect the validity of any proceedings under this Section. Service by first class mail, postage prepaid shall be effective on the date of mailing. 5 13 (d) Failure of any responsible party to file an appeal in accordance with the provisions of this Section shall constitute a waiver of that responsible party's rights to administrative determination of the merits of the Abatement Order and the amount of the penalty. If no appeal is filed, the Abatement Order shall be deemed a final administrative order and a failure to exhaust the responsible party's administrative remedies. 9. At any time after the Abatement Order becomes final, the City Council may cause the Abatement Order and a notice of lien to be recorded with the County Recorder. The final Abatement Order and lien shall, at a� minimum, identify the record owner and/or possessor of the property and set forth the last known address of the record owner and/or possessor, the date on which the penalty was imposed, a description of the real property subject to the lien, and the amount of the penalty. 10. This Subsection provides a civil penalty remedy that is in addition to all other legal remedies, criminal or civil, which may be pursued by the City Manager or the City Attorney to address any violation of this Section. The civil penalty imposed pursuant to the provisions of this section shall be in lieu of the administrative citation penalties imposed pursuant to the provisions of Section 1.06.040 of this Code. Section 7. This urgency ordinance shall take effect immediately upon its adoption by a four-fifths (4/5) vote of the City Council. This urgency ordinance shall continue in effect from the date of its adoption and until the effective date of Ordinance No. _, and shall thereafter be of no further force and effect. Section 8. If any section or provision of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, then the provisions of Section 1 through 3, inclusive, of this Ordinance shall be deemed invalid and unenforceable and the dispensing of cannabis for any reason in any zone shall be deemed a prohibited use under the City's Zoning Code. The City Council hereby declares Ithat it would not have adopted this Ordinance if any of the sections or provisions thereof may be declared invalid or unconstitutional or contravened via legislation. 6 14 Section 9. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or the summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect immediately. PASSED, APPROVED, AND ADOPTED this day of 2012. STEPHEN P. POUGNET, MAYOR ATTEST: JAMES THOMPSON, CITY CLERK APPROVED AS TO FORM: DOUGLAS HOLLAND, CITY ATTORNEY 15 CITY OF PALM SPRINGS NOTIFICATION OtM City Council Meeting Date: July 11, 2012 Subject: Urgency Ordinance No. 1812 - Summary AFFIDAVIT OF PUBLICATION I, Kathie Hart, Chief Deputy City Clerk, of the City of Palm Springs, California, do hereby certify that a copy of the attached Ordinance Summary was published in the Desert Sun on July 26, 2012. 1 declare under penalty of perjury that the foregoing is true and correct. IL"�,D Kathie Hart, CIVIC Chief Deputy City Clerk AFFIDAVIT OF POSTING 1, Kathie Hart, Chief Deputy City Clerk, of the City of Palm Springs, California, do hereby certify that a copy of the attached Ordinance Summary was posted at City Hall, 3200 E. Tahquitz Canyon Drive, on the exterior legal notice posting board and in the Office of the City Clerk on July 24, 2012. 1 declare under penalty of perjury that the foregoing is true and correct. Kathie Hart, CIVIC Chief Deputy City Clerk The Desert Sun Certificate of Publication 750 N Gene Autry Trail Palm Springs, CA 92262 760-7784578/Fax 760-7784731 State Of California ss: County of Riverside Advertiser: CITY OF PALM SPRINGS/LEGALS PO BOX 2743 PALM SPRINGS CA 922632 2000329663 1 am over the age of 18 years old, a citizen of the United States and not a party to, or have interest in this matter. I hereby certify that the attached advertisement appeared in said newspaper (set in type not smaller than non panel) in each and entire issue of said newspaper and not in any supplement thereof on the following dates,to wit: Newspaper: .The Desert Sun No i9se CITY OFPALM SPRINGS AN pr I O�RDINANCENO.7812 PALM ,'$pglrjG9ROCAL O OF THA I DING 7/26/2012 SECTION .52.03b AND SUBSEC'TIONSKAND L CSEC ON93.2315OF,.ANDADDINOSUB- SECTION K TO SECTION 8323.15 OF THE TALM O ENFORCEMENT OFIPTHE C�E'S E TIN 'CANNABIS REGULATORY ORDINANCE(4/STHS VOTE REQUIRED.) This U Adin, 'summary oolled"Ps and Ocmminpaenrcegu requires unpermitted I acknowledge that I am a principal clerk of the printer of °A�"r"n »to pVa arena asHOBe fr The Desert Sun, printed and published weekly in the City in d`^"' tlVe memere �admdle u nalatlor5'rd the a post of Palm Springs, County of Riverside, State of California. ap aepFeam �nanca,i gposp�.. The Desert Sun was adjudicated a newspaper of general raMrbWn of andY+e circulation on March 24, 1988 by the Superior Court of the CERTIFICATION ' County of Riverside, Stale of California Case No. STATE OF CALIFORNIA G E)1 191236. Cm O PALM SPR NO p JAMESATHOMpSON, Clerk of the City W I declare under penalty of perjury that the foregoing is true Sri gs,Califomla;ddooryt�reby 9ensy Ordinance No.1812 iree pa ruA,in'ibe, ' Urr- and correct. Executed on this 26th day of July, 2012 in Cd ;9 Of the C�oml�latdmoo y 71 2pi2 y e Palm Springs,California. AYES. Cuunpynember CounalrtwmGer Lewin, CouncilmemHbsr Maio I Maw s, Teem Trost,and Mayrir Pou9net. ABSTAIN: NNone or JAMES THOMPSON,CITY CLERK Declarant' P+01111had.7rAM.' Co =Or y ` •t:Z 5 LU Lc.?< c) N <: O _1 N CITY OF PALM SPRINGS ORDINANCE NO. 1812 AN URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 3.52.030 AND SUBSECTIONS K AND L OF SECTION 93.23.15 OF, AND ADDING SUBSECTION K TO SECTION 93.23.15 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO ENFORCEMENT OF THE CITY'S MEDICAL CANNABIS REGULATORY ORDINANCE. (4/5THS VOTE REQUIRED.) City Attorney's Summary This Urgency Ordinance requires unpermitted collectives and cooperatives to disclose their unpermitted status to the public and provides additional administrative enforcement options to the City in addressing violations of the City's Medical Cannabis Regulatory Ordinance, including posting of property, issuance of abatement orders, and the recordation of liens. CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, California, do hereby certify that Urgency Ordinance No. 1812 is a full, true, and correct copy, and adopted at a regular meeting of the City Council held on July 11, 2012 by the following vote: AYES: Councilmember Hutcheson, Councilmember Lewin, Councilmember Mills, Mayor Pro Tern Foat, and Mayor Pougnet. NOES: None. ABSENT: None. ABSTAIN: None. ?AM:ES THOMPSON, CITY CLERK ORDINANCE NO. 1812 AN URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 3.52.030 AND SUBSECTIONS K AND L OF SECTION 93.23.15 OF, AND ADDING SUBSECTION K TO SECTION 93.23.15 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO ENFORCEMENT OF THE CITY'S MEDICAL CANNABIS REGULATORY ORDINANCE. (4/5THS VOTE REQUIRED.) City Attorney's Summary This Urgency Ordinance requires unpermitted collectives and cooperatives to disclose their unpermitted status to the public and provides additional administrative enforcement options to the City in addressing violations of the City's Medical Cannabis Regulatory Ordinance, including posting of property, issuance of abatement orders, and the recordation of liens. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ORDAINS: Section 1. This Urgency Ordinance is adopted pursuant to Section 312 of the Charter of the City of Palm Springs, California. Section 2. The City Council finds, determines, and declares that this Urgency Ordinance is necessary to ensure the timely, cost-effective, and efficient enforcement of the City's Medical Cannabis Regulatory Ordinance (PSMC Sec. 93.23.15). The California Fourth Appellate District Court in the case of City of Palm Springs v. The Holistic Collective (Case No. E053736), validated the City's Medical Cannabis Regulatory Ordinance and determined that the City lawfully adopted this ordinance and that the City has the authority under law to enforce the ordinance. The City Council has determined that the City can and should only permit a limited number of medical cannabis cooperatives or collectives to operate in the City in furtherance of the State of California's Compassionate Use Act. The City has experienced a great increase in the number of marijuana dispensaries operating in the City without compliance with the provisions of the City's Medical Cannabis Regulatory Ordinance. These dispensaries are operating without a permit under the Code and outside the parameters of the City's regulatory program. The ability of the City to initiate and timely implement the enforcement of its Medical Cannabis Regulatory Ordinance is necessary to ensure the preservation and protection of the residents of the City, bona fide patients and caregivers recognized under the Compassionate Use Act, and the medical cannabis cooperatives and collectives that have complied with the City's Medical Cannabis Regulatory Ordinance and have been issued permits to operate as such within the City. 1 Section 3. Section 3.52 of the Palm Springs Municipal Code is amended to read: 3.52.030 Handling where legal impediments exist to conducting of business. Whenever it appears to the collector that an application for a business license involves a proposed business activity for which other permit or licensing requirements are applicable under local or state or federal laws, ordinances or regulations before such business activity could lawfully be conducted in the city or at the particular location proposed, or involves a proposed business activity which could not lawfully be conducted in the city or at the particular location proposed, the collector shall so inform the applicant, and ascertain whether, in view of such circumstances, the applicant desires to withdraw the application pending removal of the legal impediments, if such removal be possible. In the event the applicant nonetheless insists upon submitting the application, the collector shall accept the proferred tax payment, and issue a receipt therefor which shall contain language clearly stating that such receipt is not to be deemed in any way an official sanction for the conducting of the proposed business. Every person, corporation, partnership, or association issued a receipt under the provisions of this Section shall display such receipt in a prominent place in its business where it is clearly visible to all members of the public entering the premises. Section 4. Paragraphs 10 and 19 of Subsection K of Section 93.23.15 of the Palm Springs Municipal Code are amended to read: 10. Signage for the cooperative or collective shall be limited to name of business and its status as a permitted cooperative or collective pursuant to this Section only and no advertising of the goods and/or services shall be permitted. Each cooperative or collective shall post a sign or notice conspicuously at each point of public access into the cooperative or collective stating that the cooperative or collective is a permitted cooperative or collective under the provisions of this Section. 19. Fully comply with and meet all operating criteria required pursuant to the Compassionate Use Act, state law, the Attorney General Guidelines, the provisions of the Palm Springs Municipal Code, including without limitation, this Section, and any specific, additional operating procedures and measures as may be imposed as conditions of approval of the regulatory permit, and all requirements set forth in the covenant as described in Subsection J, in order to ensure that the operation of the cooperative or collective is consistent with the protection of the health, safety, and welfare of the community, qualified patients, and primary caregivers, and will not adversely affect surrounding uses. Section 5. The title of Subsection L of Section 93.23.15 of the Palm Springs Municipal Code is amended to read: "Enforcement of Medical Cannabis Cooperative or Collective Permits." No other provision of Subsection L is affected by this amendment. 2 Section 6. Subsection N is added to Section 93.23.15 of the Palm Springs Municipal Code to read: N. Abatement Orders and Civil Penalties. 1. Any person, partnership, association, corporation, fiduciary, or other entity that owns, leases, occupies, controls, or manages any building, property, or occupancy and causes, permits, or maintains a violation of the provisions of this Section, including without limitation the provisions of Subsections A and B hereof, or that falsely claims in any advertising of any kind, including without limitation, signs or handbills, that such person, association, corporation, fiduciary, or other entity is permitted as a medical cannabis cooperative or collective in the City, shall be subject to an abatement order issued pursuant to the provisions of this Subsection and shall be liable for administrative penalties as follows: (a) Each party subject to an abatement order pursuant to this Subsection, as determined by the City Manager, shall pay an administrative penalty of one thousand ($1,000.00) dollars. (b) In the event that a violation of this Section addressed by an abatement order has not been abated, cured, remedied, and/or eliminated to the reasonable satisfaction the City Manager by the tenth (10th) day after the issuance of the abatement order, each party subject to said abatement order shall pay a supplemental administrative penalty of two thousand five hundred ($2,500.00) dollars. (c) In the event that a violation of this Section addressed by an abatement order has not been abated, cured, remedied and/or eliminated to the reasonable satisfaction of the City Manager by the thirtieth (30th) day after the issuance of an abatement order, each party subject to said abatement order shall pay a second supplemental administrative penalty of five thousand ($5,000.00) dollars for each calendar week, or portion thereof, the building and/or occupancy thereof is in violation of the provisions of this Section. 2. The City Manager may issue an Abatement Order for violations of the provisions of this Section. The Abatement Order shall contain: (a) The street address and assessor's parcel number of the premises on which the building or structure is located, sufficient for identification; (b) Reference to all code sections violated with a brief and concise description of the conditions found; (c) A statement of the required action to permanently correct outstanding violations; 3 (d) A statement enumerating the action that can be taken by the City should the responsible party or parties fail to comply with the terms and deadlines as prescribed in the Abatement Order. (e) A statement advising that any person having any record title or interest in the building may appeal Abatement Order served, provided the appeal is made in writing, pursuant to and within the time frames provided in this Subsection. Failure to file an appeal in accordance with this Subsection shall constitute a waiver of the right to an administrative hearing and adjudication of the Abatement Order or any portion thereof. 3. The Abatement Order, or any amended Abatement Order, shall be served on the following parties: (a) The record owner of the property; and, (b) The holder of a mortgage, deed of trust, or other lien on the property, if recorded or otherwise actually known to the City Manager at the time the Abatement Order is served. (c) If different than (1) or (2) above, the tenant of any building or structure or the operator of any marijuana or cannabis dispensary activity within such building or structure. 4. Service shall be completed in the following manner: (a) Posting of the Abatement Order conspicuously on or in front of the property and at each point of public access into the building or structure. It is a misdemeanor to remove or deface any Abatement Order posted on the property. (b) Simultaneously, the same notice shall be sent by regular mail and certified mail (return receipt requested). If a notice that is sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned. Service by certified or regular mail in the manner described above shall be effective on the date of mailing; or (c) Personal service; (d) If the City Manager is unable to effectively serve the Abatement Order as provided in this Subsection, the City Manager may publish the Abatement Order in a newspaper of general circulation (as defined in Govt. Code § 6000), published in this jurisdiction. Publication of the Abatement Order pursuant to this Subsection shall be for five (5) days. The period of notice commences upon the first day of publication and terminates at the end of the fifth day, including therein the first day. Publication shall be made on each day on which the newspaper is 4 published during the period. Service is deemed complete on the last day of publication. 5. The failure of any person with an interest in the property to receive any notice served in accordance with this Subsection shall not affect the validity of any proceedings taken under this Section. 6. Proof of service of the Notice and Order shall be documented at the time of service by a declaration under penalty of perjury, executed by the person effecting service, declaring the time and manner in which service was made. If service is effectuated by certified mail, the declaration, together with any receipt card returned in acknowledgment of receipt by certified mail, shall be affixed to the copy of the Notice and Order retained by the Building Official. 7. Upon receipt of an Abatement Order, each responsible party must take one of the following actions to avoid additional penalties: (a) Correct the violation, pay the corresponding fine(s), if any, and contact the City Manager to request a re-inspection, prior to the compliance date specified in the abatement order; or (b) Request a hearing to appeal the Abatement Order pursuant to Paragraph 8 of this Subsection N. 8. A responsible party receiving an Abatement Order may appeal such order within seven (7) calendar days from the date the Abatement Order is deemed served. (a) The appeal must be in writing and must indicate the appellant's full name and mailing address. It must be accompanied by the penalty amount and appeal fee which shall be set by resolution of the City Council, must specify the basis for the appeal in detail, and must be filed with the City Clerk's Office. If the appeal deadline falls on a day City Hall is closed, then the deadline shall be extended until the next regular business day. (b) As soon as practicable after receiving the written notice of appeal, the City Manager shall fix a date, time, and place for the hearing before a hearing officer pursuant to the provisions of Section 1.06.060 of this Code. Written notice of the time and place for the hearing may be served by first class mail, at the mailing address indicated on the written appeal. Service of the appeal notice must be made at least seven (7) calendar days prior to the date of the hearing to the party appealing the administrative citation. (c) The failure of any person with an interest in the property, or other responsible party, to receive such properly addressed notice of the hearing shall not affect the validity of any proceedings under this Section. Service by first class mail, postage prepaid shall be effective on the date of mailing. 5 (d) Failure of any responsible party to file an appeal in accordance with the provisions of this Section shall constitute a waiver of that responsible party's rights to administrative determination of the merits of the Abatement Order and the amount of the penalty. If no appeal is filed, the Abatement Order shall be deemed a final administrative order and a failure to exhaust the responsible party's administrative remedies. 9. At any time after the Abatement Order becomes final, the City Council may cause the Abatement Order and a notice of lien to be recorded with the County Recorder. The final Abatement Order and lien shall, at a minimum, identify the record owner and/or possessor of the property and set forth the last known address of the record owner and/or possessor, the date on which the penalty was imposed, a description of the real property subject to the lien, and the amount of the penalty. 10. This Subsection provides a civil penalty remedy that is in addition to all other legal remedies, criminal or civil, which may be pursued by the City Manager or the City Attorney to address any violation of this Section. The civil penalty imposed pursuant to the provisions of this section shall be in lieu of the administrative citation penalties imposed pursuant to the provisions of Section 1.06.040 of this Code. Section 7. This urgency ordinance shall take effect immediately upon its adoption by a four-fifths (4/5) vote of the City Council. This urgency ordinance shall continue in effect from the date of its adoption and until the effective date of Ordinance No. 1811, and shall thereafter be of no further force and effect. Section 8. If any section or provision of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, then the provisions of Section 1 through 3, inclusive, of this Ordinance shall be deemed invalid and unenforceable and the dispensing of cannabis for any reason in any zone shall be deemed a prohibited use under the City's Zoning Code. The City Council hereby declares that it would not have adopted this Ordinance if any of the sections or provisions thereof may be declared invalid or unconstitutional or contravened via legislation. 6 Section 9. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or the summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect immediately. PASSED, APPROVED, AND ADOPTED this 11th day of July, 2012. STEPHEN P. POUGNET, MAYOR ATTEST: JAMES THOMPSON, CITY CLERK CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, California, do hereby certify that Ordinance No. 1812 is a full, true, and correct copy, and adopted at a regular meeting of the City Council held on July 11, 2012 by the following vote: AYES: Councilmember Hutcheson, Councilmember Lewin, Councilmember Mills, Mayor Pro Tern Foat, and Mayor Pougnet. NOES: None. ABSENT: None. ABSTAIN: None. JAMES THOMPSON, CITY CLERK 7