A.
In 1996,
the voters of the state of California approved Proposition 215, entitled
"The Compassionate Use Act of 1996" ("Compassionate Use Act") (Health
and Safety Code Section 11362.5 et seq.
B.
In 2004,
the state enacted Senate Bill 420 entitled the "Medical Cannabis Program"
(Health and Safety Code Section 11362.7 et seq.) to clarify the scope
of the Compassionate Use Act and to allow public entities to adopt
and enforce rules and regulations consistent with Senate Bill 420.
C.
In 2011,
Assembly Bill 2650 (Health and Safety Code Section 11362.768) was
enacted. This law affirms that counties may adopt policies and ordinances
that restrict the location and establishment of medical cannabis collectives
and cooperatives.
D.
In 2015,
the state enacted the Medical Cannabis Regulation and Safety Act ("MCRSA")
(Business and Professions Code Section 19300 et seq.). MCRSA consisted
of three bills: Assembly Bill 243, Assembly Bill 266 and Senate Bill
643. The purpose of MCRSA is to regulate the cultivation, dispensing,
manufacturing, delivery and transportation of medical cannabis.
E.
California's
medical cannabis laws do not limit or supersede existing local authority,
including the authority to prohibit the cultivation, dispensing, manufacturing,
distribution, and transportation of medical cannabis within the county.
F.
In 2016,
the voters of the state of California approved Proposition 64 enacting
the Control, Regulate, and Tax Adult Use of Cannabis Act ("the AUMA")
(Health and Safety Code Section 11362.1 et seq. and Business and Professions
Code Section 2600 et seq.). The AUMA legalizes and regulates nonmedical
cannabis under California law.
G.
In 2017,
in Senate Bill 94 the state enacted the Medicinal and Adult-Use Cannabis
Regulation and Safety Act (MAUCRSA). MAUCRSA repealed MCRSA and included
certain provisions of MCRSA in the licensing provisions of AUMA.
H.
Like
California's medical cannabis laws and AUMA, MAUCRSA recognizes and
preserves the authority of local jurisdictions to enact and enforce
reasonable regulations on the cultivation, possession, and consumption
of cannabis. Under MAUCRSA, a local jurisdiction may prohibit commercial
cannabis activity, may ban the outdoor cultivation of cannabis, and
may impose reasonable regulations on the indoor cultivation of cannabis
for personal use.
I.
Experience
in Merced County shows that local regulation of cannabis is necessary
to address the current and immediate threat to the public health,
safety, and welfare from unregulated medical and nonmedical cultivation,
manufacturing, distribution and deliveries.
J.
Several
California cities and counties have experienced serious adverse impacts
associated with and resulting from cannabis businesses, including
dispensaries, delivery services and cultivation sites. Harmful effects
include burglaries, robberies, illegal sales and illegal distribution
of cannabis, use or possession of cannabis by unauthorized persons,
attacks on persons entering or leaving premises, loitering, smoking
cannabis in public places, and offensive odors.
K.
The
cultivation of cannabis outdoors, where it is often readily observable
by neighbors and the general public, increases the risk of trespassing
and burglary, and acts of violence in connection with the commission
of such crimes or the occupants' attempts to prevent such crimes.
Cultivation of cannabis outdoors increases the likelihood of offensive
odors traveling off the premises. Additionally, experience in Merced
County and elsewhere demonstrates that outdoor cultivation of cannabis
is often associated with violations of local, state, and federal environmental
laws and pesticide regulations, threatening harm to local waterways
and groundwater quality, and endangering the public health, safety,
and welfare. Given the identified negative impacts associated with
outdoor cultivation, it is proper and necessary to prohibit the outdoor
cultivation of cannabis to protect the public health, safety and welfare
within the unincorporated area of Merced County.
L.
The
unregulated indoor cultivation of cannabis has potential adverse effects
to the structural integrity of a building, and the use of high wattage
grow lights and excessive use of electricity increase the risk of
fire, which presents a clear danger to the building and its occupants.
M.
Allowing
for the delivery of medical cannabis from licensed retailers located
outside the unincorporated area to qualified patients located within
the unincorporated area would be the least onerous method of affording
access of medical cannabis to qualified patients and caregivers within
the county.
N.
The
California Attorney General's August 2008 Guidelines for the Security
and Non-Diversion of Cannabis Grown for Medical Cannabis Use recognizes
that the cultivation or other concentration of cannabis in any location
or premises without adequate security increases the risk that nearby
homes or businesses may be negatively impacted by nuisance activity
such as loitering or crime.
(Ord. 1955 § 2, 2017)
It is the purpose and intent of this chapter to implement state
law by providing a means for regulating the cultivation, selling,
distributing, dispensing, manufacturing or testing of cannabis in
a manner consistent with state law and which balances the health,
safety, and welfare of the residents and businesses within the unincorporated
territory of the county of Merced. This chapter is intended to be
consistent with California's medical cannabis laws, the Adult Use
of Cannabis Act, and MAUCRSA, and represents an exercise of the local
authority retained by the county of Merced under those laws.
(Ord. 1955 § 2, 2017)
This chapter is not intended to, nor shall it be construed or
given effect in a manner that causes it to apply to, any activity
that is regulated by federal or state law to the extent that application
of this chapter would conflict with such law or would unduly interfere
with the achievement of federal or state regulatory purposes. It is
the intention of the board that this chapter shall be interpreted
to be compatible and consistent with federal, state, and county enactments
and in furtherance of the public purposes which those enactments express.
It is the in-tention that the provisions of this chapter will supersede
any other provisions of this code found to be in conflict.
(Ord. 1955 § 2, 2017)
For the purposes of this chapter, the following definitions
shall apply, unless the context clearly indicates otherwise. If a
word is not defined in this chapter, the common and ordinary meaning
of the word shall apply. All citations to state law shall refer to
the act, statute, or regulations as may be amended from time to time.
shall have the meaning set forth in Business and Professions
Code Section 26001.
means any association, cooperative, affiliation, group, or
collective of persons organized or associated to cultivate, store
and/or dispense cannabis for medical purposes pursuant to the CUA
or MMP and as provided in Health and Safety Code Section 11362.775.
shall have the same meaning as that set forth in Business
and Professions Code Section 26001, and shall include any activity
involving the planting, growing, harvesting, drying, curing, grading,
or trimming of cannabis.
means any facility, location, establishment or similar entity
that cultivates, distributes, delivers, supplies or processes cannabis
for medical purposes relating to a qualified patient or primary caregiver,
pursuant to the CUA and MMP in accordance with Health and Safety Code
Section 11362.5 et seq. A dispensary shall include a dispensing collective
or cooperative.
means a space within a building that complies with the California
Building Code, as adopted by the county, that has a complete roof
enclosure supported by connecting walls extending from the ground
to the roof, 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 nominal or thicker studs overlain with three-eighths-inch
or thicker plywood or equivalent materials. The cultivation of cannabis
which occurs in a greenhouse, hoop house, or similar structure is
considered "outdoor" cultivation for purposes of this chapter.
shall have the meaning forth in Health and Safety Code Section
11018.5.
means within a fully enclosed and secure structure as defined
herein.
shall have the same meaning as "cannabis" set forth above.
means any location that is not within a fully enclosed and
secure structure as defined herein.
shall have the meaning set forth in Health and Safety Code
Section 11362.7(d).
means a house, an apartment unit, a mobile home, or other
similar dwelling, and as provided in Health and Safety Code Section
11362.2.
shall have the meaning set forth in Health and Safety Code
Section 11362.7(f).
includes all commercial activities set forth in Business
and Professions Code Section 26001, subdivision (k), and includes,
but is not limited to, the cultivation, possession, manufacture, distribution,
processing, storing, laboratory testing, packaging, labeling, or sale
of cannabis and cannabis products.
means a business established for the retail sale and delivery
of cannabis for medical or recreational use or such cannabis products
to customers.
(Ord. 1955 § 2, 2017)
A.
Unless
specifically allowed under subdivision B of this section, commercial
cannabis activity, to the fullest extent permitted under state law,
is prohibited and declared unlawful and a public nuisance in all zoning
districts and all of the unincorporated territory of the county. The
approval of any application for a State license issued under Division
10 of the Business and Professions Code violates the county's prohibition
of commercial cannabis activity.
B.
Deliveries
from M-Type 10, medical retailer licensees, located outside the unincorporated
areas of Merced County.
Exempt from the ban on commercial cannabis activity set forth
in subdivision "A" above, the delivery of medical cannabis to qualified
patients or primary caregivers within the unincorporated areas of
Merced County provided all of the following requirements are met:
1.
Only
M-Type 10 licensed retailers, as set forth in Division 10 of the Business
and Professions Code, whose licensed premises is located outside the
unincorporated areas of Merced County, who possess a valid and current
state retailer license that has been designated for commercial medicinal
cannabis activity and are operating in compliance with the applicable
laws and regulations of the local jurisdiction in which the licensed
retailer is physically located shall be allowed to provide medical
cannabis delivery to a qualified patient or primary caregiver in the
unincorporated areas of Merced County; and
2.
Prior
to commencing cannabis deliveries to qualified patients or primary
caregivers in the unincorporated areas of Merced County, a licensed
retailer shall register with the county of Merced sheriff's department
and provide proof acceptable to the sheriff's department that the
retailer is licensed under the applicable laws of the state of California
and operating in compliance with the applicable laws and regulations
of the local jurisdiction in which the cannabis dispensary is located;
and
3.
Prior
to commencing medical cannabis deliveries to qualified patients or
primary caregivers in the unincorporated areas of Merced County, a
licensed retailer shall provide the sheriff's department with the
names, ages and driver's license numbers of all persons who will be
conducting the deliveries. The licensed retailer shall notify the
sheriff's department of any changes in the identities of the persons
conducting the deliveries within 24 hours of any change in that information;
and
4.
Thereafter,
on an annual basis and prior to July 1 of each year, the licensed
retailer shall provide the sheriff's department with proof that the
licensed retailer continues to be licensed under the applicable laws
of the state of California and is authorized to operate in the local
jurisdiction in which the licensed retailer is located. In addition
to this annual reporting requirement, the licensed retailer shall
promptly report any thefts of cannabis or money related to the delivery
of cannabis in Merced County to the Merced County sheriff's department;
and
5.
Prior to commencing cannabis deliveries to qualified patients or primary caregivers in the unincorporated areas of Merced County, a licensed retailer shall obtain, and adhere to the conditions imposed on, a business license to operate in Merced County as required under Title 6, Chapter 6.02 of the Merced County Code.
C.
This
chapter shall not be construed to prevent the transportation of cannabis
or cannabis products on public roads by a licensee transporting cannabis
or cannabis products in compliance with state law.
(Ord. 1955 § 2, 2017)
A.
The
personal cultivation of cannabis in the unincorporated area of Merced
County shall be limited to a maximum of six cannabis plants, whether
immature or mature. Such cultivation shall be in compliance with state
law and all of the requirements set forth below:
1.
The
cultivation occurs either: (a) within a single private residence;
or (b) inside a fully enclosed and secure structure located upon the
grounds of a private residence. Outdoor cultivation of any type, on
any parcel is prohibited. Cultivation for commercial use is also prohibited.
2.
The
cultivation is contained within a fully enclosed structure secured
by lock and key or other security device which prevents unauthorized
entry and is inaccessible to minors.
3.
The
cultivation areas are not visible from the public right-of-way.
4.
The
cultivation areas, including any lighting, plumbing, or electrical
components used, comply with Title 16 (Building and Construction)
of this Code. The cultivation areas must be properly ventilated so
as not create humidity, mold, or other related problems. Lighting
shall not exceed 1,000 watts per light. The use of gas products (CO2, butane, etc.) or CO2 and ozone
generators for cannabis cultivation is prohibited.
5.
Cultivation
is not conducted in a manner that constitutes a public nuisance. A
public nuisance may be deemed to exist if the cultivation produces
light, glare, heat, noise, odor, vibration, or other effect that is
either detrimental to public health, safety, or welfare or interferes
with the reasonable enjoyment of life or property.
6.
The
primary use of the property remains at all times as a residence, with
legal and functioning cooking, sleeping, and sanitation facilities
with proper ingress and egress. No room shall be used for cannabis
cultivation where such cultivation will impair or prevent the primary
uses of cooking of meals, sleeping, and sanitation.
7.
Written
consent of the property owner is obtained prior to any cultivation
commencing. Said consent must be evidenced by a signed and notarized
statement from the property owner permitting cultivation on the affected
parcel.
8.
The
cannabis plants, and all cannabis produced by the plants, shall be
for the personal use of the cultivator only, and not for sale, provided
that such cannabis and cannabis plants may be given away to persons
21 years of age or older without any compensation whatsoever in accordance
with Health and Safety Code Section 11362.1, subdivision (a)(2).
B.
The
personal cultivation of cannabis that is not in strict compliance
with the requirements of this chapter is hereby declared unlawful
and a public nuisance subject to enforcement and penalties under state
law and as set forth in this chapter.
C.
Nothing
in this section shall prohibit the indoor cultivation of cannabis
that is otherwise lawful under Health and Safety Code Sections 11362.5
and 11362.7 et seq.
(Ord. 1955 § 2, 2017)
The sheriff, or the sheriff's designee and/or the director of
community and economic development, or the director's designee, are
charged with the responsibility of administering this chapter and
exercising the authority conferred thereby.
(Ord. 1955 § 2, 2017)
Sections 9.29.080 through 9.29.096 are enacted pursuant to Government Code Section 25845 and comply with California Health and Safety Code Section 17980. The procedures set out in this chapter may be used in addition to, or as an alternative to, any other abatement procedure and any other penalty or fine provided by law.
(Ord. 1955 § 2, 2017)
The enforcing officer, upon receipt of information leading him
or her to believe that a public nuisance of the type specified in
this chapter exists upon private property in the unincorporated area
of the county, shall make a reasonable investigation of the facts
and if possible inspect the property to determine whether or not a
public nuisance exists. Inspections may include photographing the
conditions or obtaining samples or other physical evidence. If an
owner, occupant or agent refuses permission to enter or inspect, the
enforcing officer may seek an inspection warrant pursuant to the procedures
provided for in the California Code of Civil Procedure Sections 1822.50
through 1822.59.
(Ord. 1955 § 2, 2017)
A.
Every
owner of property shall properly maintain their property in a manner
such that it does not contain or become a public nuisance described
by this chapter and shall promptly abate any such public nuisance
in accordance with this chapter.
B.
Violation
of any provision of this chapter shall subject the violator to criminal
prosecution, abatement, administrative penalties, costs, and such
other sanctions set forth in this chapter and, without limitation,
as otherwise provided by law.
(Ord. 1955 § 2, 2017)
Whenever the enforcing officer determines that a public nuisance
as described in this chapter exists on any property within the unincorporated
area of Merced County, he or she is authorized to notify the owner(s)
and/or occupants of the property, through issuance of a "notice to
abate and penalties for unlawful cannabis cultivation."
(Ord. 1955 § 2, 2017)
The notice set forth in Section 9.29.083 shall be in writing and shall:
A.
Identify
the owner(s) of the property upon which the nuisance exists, as named
in the records of the county assessor, and identify the occupant(s),
if other than the owner(s), and if known or reasonably identifiable.
B.
Describe
the location of such property by its commonly used street address,
giving the name or number of the street, road or highway and the number,
if any, of the property.
C.
Identify
such property by reference to the assessor's parcel number.
D.
State
that unlawful cannabis cultivation exists on the property and that
it has been determined by the enforcing officer to be a public nuisance
described in this chapter.
E.
Describe
the unlawful cannabis cultivation that exists and the actions required
to abate it.
F.
State
that the owner or occupant is required to abate the unlawful cannabis
cultivation within 72 hours after the date that said notice was served.
G.
State
the date of service.
H.
State
that the owner or occupant may, within 10 days after the date that
said notice was served, make a request in writing to the clerk of
the board of supervisors for a hearing before the administrative hearing
board to appeal the determination of the enforcing officer that the
conditions existing constitute a public nuisance described by this
chapter, or to show other cause why those conditions should not be
abated in accordance with the provisions of this chapter.
I.
State
that, unless the owner or occupant abates the unlawful cannabis cultivation,
or requests a hearing before the administrative hearing board, within
the time prescribed in the notice, the enforcing officer will abate
the nuisance. It shall also state that the abatement costs, including
administrative costs, may be made a special assessment added to the
county assessment roll and become a lien on the real property, or
be placed on the unsecured tax roll.
J.
State
that the notice may be sent to any person or entity identified in
public records as claiming a property interest or lien on the property,
including, but not limited to, financial institutions.
K.
If sought
by the notice, state the amount of the administrative penalty imposed
by the enforcing officer pursuant to this chapter, and that the amount
may continue to accrue.
L.
If sought
by the notice, state how, where, to whom, and within what number of
days the administrative penalty must be paid.
M.
If sought
by the notice, state that the administrative penalty will be effective
if the violation is not corrected within 10 days after service of
the notice, and stating the effective date.
N.
Generally
state appellate or hearing rights.
O.
Refer
the recipient to this chapter for further information.
P.
Bear
the signature of the enforcing officer issuing the notice along with
the date of issuance.
(Ord. 1955 § 2, 2017)
A.
The notice set forth in Section 9.29.083 shall be served by delivering it personally to the owner and to the occupant, as well as each person sought to be held responsible, or by mailing it by regular United States mail, together with a certificate of mailing, to the occupant of the property at the address thereof, and to any nonoccupying owner at his or her address as it appears on the last equalized assessment roll, except that:
1.
If
the records of the county assessor show that the ownership has changed
since the last equalized assessment roll was completed, the notice
shall also be mailed to the new owner at his or her address as it
appears in said records; or
2.
In
the event that, after reasonable effort, the enforcing officer is
unable to serve the notice as set above, service shall be accomplished
by posting a copy of the notice on the real property upon which the
nuisance exists as follows: copies of the notice shall be posted along
the frontage of the subject property and at such other locations on
the property reasonably likely to provide notice to the owner. In
no event shall fewer than two copies of the order be posted on a property
pursuant to this section.
B.
The
date of service is deemed to be the date of deposit in the mail, personal
delivery, or posting, as applicable.
(Ord. 1955 § 2, 2017)
A.
Any
person upon whom a notice to abate unlawful cannabis cultivation has
been served may appeal the determination of the enforcing officer
that the conditions set forth in the notice constitute a public nuisance
described by this section and should be abated in accordance with
the provisions of this chapter to the board of supervisors. Any such
administrative appeal shall be commenced by filing a written request
for a hearing with the clerk of the board of supervisors within 10
days after the date that said notice was served. If the tenth day
falls on a non-business day, the time to request the hearing shall
be extended to the next business day. The written request shall include
a statement of all facts supporting the appeal. The time requirement
for filing such a written request shall be deemed jurisdictional and
may not be waived. In the absence of a timely filed written request
that complies fully with the requirements of this section, the findings
of the enforcing officer contained in the notice shall become final
and conclusive on the eleventh day following service of the notice.
B.
In his
or her discretion, the enforcing officer may, within 10 days after
the notice was served, request a hearing before the board of supervisors
or the administrative hearing board to determine whether or not the
conditions should be abated in accordance with the provisions of this
chapter.
C.
Upon
timely receipt of a written request for hearing which complies with
the requirements of this section, the clerk of the board of supervisors
shall set a hearing date not less than seven business days nor more
than 14 business days from the date the request was filed. The clerk
shall send written notice of the hearing date to the requesting party,
to any other parties upon whom the notice was served, and to the enforcing
officer. A failure to set a hearing date within this time period is
not jurisdictional.
D.
Unless
jurisdiction over a specific incidence of nuisance is withdrawn to
itself by the board of supervisors, at a meeting of the board of supervisors,
the abatement hearings required by this chapter and California Government
Code Section 25845(h) to be heard by the board of supervisors are
hereby automatically delegated to an administrative hearing board
created by this chapter.
1.
Said
hearing board is hereby created pursuant to California Government
Code Section 25845(h) and shall be composed of three members selected
by the county executive officer from an alphabetical roster composed
of the assistant county executive officer, department heads, and assistant
department heads. The county executive officer may excuse a requesting
potential board member from sitting on a particular board, for what
he or she considers adequate cause. The county executive officer shall
appoint one of the members as the chair. The chair shall preside over
the hearing and decide evidentiary issues and any requests for delays.
2.
No
individual shall sit on the administrative hearing board reviewing
an enforcing officer's notice to abate and penalties for unlawful
cannabis cultivation issued by his or her department. Neither shall
the district attorney, the public defender, the county counsel, or
any of their assistant department heads sit on the administrative
hearing board. The employment, performance, evaluation, compensation
and benefits of the members of the administrative hearing board, and
its legal advisor, shall not be directly or indirectly conditioned
on or in any way related to the results or prior decisions issued
by any administrative hearing board on which the member has participated.
3.
The
administrative hearing board shall not determine the legality of this
chapter or legality of the enforcement procedures used. It shall determine
if the enforcing officer's decision conforms with this chapter and
is supported by a preponderance of the evidence presented by the enforcing
officer or his or her department. The hearing shall be recorded by
tape recording or by the services of a certified court reporter. The
record and photographic evidence shall be preserved for three years.
4.
The
county counsel shall appoint a deputy county counsel solely to impartially
advise, and not serve as an advocate before, the administrative hearing
board. He or she shall not be the usual legal advisor to the department
of the enforcing officer.
5.
Any
hearing conducted pursuant to this chapter need not be conducted according
to technical rules relating to evidence, witnesses and hearsay. Any
relevant sworn evidence shall be admitted if it is the sort of evidence
on which responsible persons are accustomed to rely in the conduct
of serious affairs regardless of the existence of any common law or
statutory rule which might make improper the admission of the evidence
over objection in civil actions. The chair of the administrative hearing
board has discretion to exclude evidence if its probative value is
substantially outweighed by the probability that its admission will
necessitate undue consumption of time.
6.
The
written findings and recommendations of the administrative hearing
board shall be referred to the board of supervisors within five days
of the conclusion of the hearing. The board of supervisors may adopt
the recommendation without further notice of hearing, or may set the
matter for a de novo hearing before the board of supervisors. No specific
form is required for the findings and recommendations, which need
only be generally stated. Written notice of the administrative hearing
board's findings and recommendations shall be mailed to the owner
and the occupants of the property at the last known addresses and
posted on the property.
E.
The decision of the board of supervisors, which shall be by resolution, shall be final and conclusive. A failure to appeal the enforcing officer's determination that a public nuisance exists will constitute a failure to exhaust administrative remedies by the responsible person(s), unless the enforcing officer proceeds in accordance with subsection B of this section.
(Ord. 1955 § 2, 2017)
A.
In any
enforcement action brought pursuant to this chapter, whether by administrative
proceedings, judicial proceedings, or summary abatement, each person
who causes, permits, suffers, or maintains the unlawful cannabis cultivation
to exist shall be liable for all actual costs incurred by the county,
including, but not limited to, actual administrative costs, and any
and all actual costs incurred to undertake, or to cause or compel
any responsible party to undertake, any abatement action in compliance
with the requirements of this chapter, whether those costs are incurred
prior to, during, or following enactment of this chapter.
B.
In any
action by the enforcing officer to abate unlawful cannabis cultivation
under this chapter, whether by administrative proceedings, judicial
proceedings, or summary abatement, the prevailing party shall be entitled
to a recovery of the reasonable attorneys' fees incurred. Recovery
of attorneys' fees under this subsection shall be limited to those
actions or proceedings in which the county elects, at the initiation
of that action or proceeding, to seek recovery of its own attorneys'
fees. In no action, administrative proceeding, or special proceeding
shall an award of attorneys' fees to a prevailing party exceed the
amount of reasonable attorneys' fees incurred by the county in the
action or proceeding.
(Ord. 1955 § 2, 2017)
Any owner or occupant may abate the unlawful cannabis cultivation
or cause it to be abated at any time pri-or to commencement of abatement
by, or at the direction of, the enforcing officer.
(Ord. 1955 § 2, 2017)
Whenever the enforcing officer becomes aware that an owner or
occupant has failed to abate any unlawful cannabis cultivation within
14 days of the date of service of the notice to abate unlawful cannabis
cultivation, unless timely appealed, or of the date of the decision
of the board of supervisors requiring such abatement, the enforcing
officer may take one or more of the following actions:
A.
Enter
upon the property and abate the nuisance by county personnel, or by
private contractor under the direction of the enforcing officer. The
enforcing officer may apply to a court of competent jurisdiction for
a warrant authorizing entry upon the property for purposes of undertaking
the work, if necessary; and/or
B.
Take the action referenced in Section 9.29.086(B); and/or
C.
Request
that the county counsel commence a civil action to redress, enjoin,
and abate the public nuisance.
(Ord. 1955 § 2, 2017)
A.
The
enforcing officer shall keep an account of the cost for each abatement
carried out and shall provide a report in writing, itemized by parcel,
to the clerk of the board of supervisors for the board of supervisors
showing the cost of abatement and the actual administrative costs
for each parcel to be considered by the board of supervisors.
B.
Prior to providing the report to the board of supervisors as set forth in subsection A, the enforcing officer, in his or her discretion, may provide a copy of the cost accounting to the person(s) sought to be held liable for payment. If paid, the enforcing officer need not forward the accounting to the board of supervisors. The enforcing officer need not wait for payment, but instead, may forward the accounting to the board of supervisors as set forth in subsection A. Payment will constitute a waiver of all challenges to the costs so charged.
(Ord. 1955 § 2, 2017)
Upon receipt of the account of the enforcing officer, the clerk
of the board of supervisors shall deposit a copy of the account pertaining
to the property of each owner in the mail addressed to the owner and
include therewith a notice informing the owner that, at a date and
time not less than 10 business days after the date of mailing of the
notice, the board of supervisors will meet to review the account and
that the owner may appear at said time and be heard. The owner may
waive the hearing on the accounting by paying the cost of abatement
and the cost of administration to the enforcing officer prior to the
time set for the hearing by the board of supervisors. Unless otherwise
expressly stated by the owner, payment of the cost of abatement and
the cost of administration prior to said hearing shall be deemed a
waiver of the right thereto and an admission that said accounting
is accurate and reasonable.
(Ord. 1955 § 2, 2017)
A.
At the
time fixed, the board of supervisors shall meet to review the accounting
of the enforcing officer. An owner of the affected property may appear
at said time and be heard on the questions whether the accounting,
so far as it pertains to the cost of abating a nuisance upon the land
of the owner is accurate and the amounts reported reasonable. The
cost of administration shall also be reviewed to ensure only the actual
costs are charged.
B.
The
report of the enforcing officer shall be admitted into evidence. The
owner shall bear the burden of proving that the accounting is not
accurate and reasonable.
(Ord. 1955 § 2, 2017)
The board of supervisors shall make such modifications in the
accounting as it deems necessary and appropriate and thereafter shall
confirm the report by resolution.
(Ord. 1955 § 2, 2017)
The board of supervisors may order that the cost of abating
nuisances pursuant to this chapter and the administrative costs as
confirmed by the board of supervisors be placed upon the county tax
roll by the county auditor as special assessments against the respective
parcels of land, or placed on the unsecured roll, pursuant to California
Government Code Section 25845; provided, however, that the cost of
abatement and the cost of administration as finally determined shall
not be placed on the tax roll if paid in full prior to entry of said
costs on the tax roll. The board of supervisors may also cause notices
of abatement lien to be recorded against the respective parcels of
real property pursuant to Section 25845 of the Government Code.
(Ord. 1955 § 2, 2017)
As an alternative to the procedures set forth in Sections 9.29.083 through 9.29.094, the county may abate the violation of this chapter by the prosecution of a civil action through the office of the county counsel, or through other counsel permitted by law, including an action for injunctive relief. The remedy of injunctive relief may take the form of a court order, enforceable through civil contempt proceedings, prohibiting the maintenance of the violation of this chapter or requiring compliance with other terms.
(Ord. 1955 § 2, 2017)
Notwithstanding any other provision of this chapter, when any unlawful cannabis cultivation constitutes an immediate threat to public health or safety, and when the procedures set forth in Sections 9.29.083 through 9.29.086 would not result in abatement of that nuisance within a short enough time period to avoid that threat, the enforcing officer may direct any officer or employee of the county to summarily abate the nuisance. The enforcing officer shall make reasonable efforts to notify the persons identified in Section 9.29.085, but the formal notice and hearing procedures set forth in this chapter shall not apply. The county may nevertheless recover its costs for abating that nuisance in the manner set forth in Sections 9.29.090 through 9.29.094.
(Ord. 1955 § 2, 2017)
Sections 9.29.100 through 9.29.108 provide administrative penalties for violation of this chapter and is enacted pursuant to California Government Code Section 53069.4. The procedures of these sections serve the following purposes to effect the purposes and intents of this chapter:
A.
To provide
a method to penalize responsible parties who fail or refuse to comply
with this chapter; and
B.
To minimize
the expense and delay where otherwise the county must pursue responsible
parties in the civil or criminal justice system.
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The procedures regarding administrative penalties shall be in
addition to criminal, civil or any other legal remedy established
by law and available to address violations of this chapter.
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(Ord. 1955 § 2, 2017)
A.
Any
responsible party violating any provision of this chapter may be issued
a notice of administrative penalties by an enforcing officer or the
board of supervisors in accordance with the provisions of this chapter.
B.
Each
and every day a violation of the provisions of the code exists constitutes
a separate and distinct offense and shall result in penalties.
C.
The enforcing officer may also request the board of supervisors, pursuant to Section 9.29.106, to impose an administrative penalty under this chapter when, in the judgment of the enforcing officer, the amount of the administrative penalties prescribed in Section 9.29.107 are not adequate in light of the totality of the circumstances, including, but not limited to, the size of the cultivation, the value of the cultivation, the number of parcels being cultivated by the responsible persons, whether or not there have been specific adverse effects on the environment and whether or not the responsible persons are repeat violators.
D.
The
enforcing officer may issue a notice of penalties for a violation
not committed in the officer's presence, if the officer has determined
through investigation that the responsible party did commit or is
otherwise responsible for the violation.
(Ord. 1955 § 2, 2017)
A.
Notice of administrative penalties shall be issued and served as set forth in Section 9.29.084 of this chapter. The notice may be combined with the notice of abatement, or separately, in the discretion of the enforcing officer.
B.
Failure
of the enforcing officer to effect actual service on any responsible
party as required in this section shall not invalidate any provisions
of this chapter, nor shall it relieve any responsible party from any
duty or obligation required by the code.
C.
Failure
of any responsible party to receive such notice of administrative
penalties shall not affect the validity of any proceedings taken under
this section against any other responsible party. Service by first
class mail postage prepaid in the manner provided in this section
shall be effective on the date of mailing.
(Ord. 1955 § 2, 2017)
A.
A responsible
person disputing the issuance of an administrative penalty may contest
the administrative penalties by requesting a hearing, in writing,
from the clerk of the board of supervisors within 10 days from the
date of service of notice the enforcement officer seeks administrative
penalties either in the notice to abate and penalties for unlawful
cannabis cultivation, or otherwise. If the tenth day falls on a non-business
day, the request must be filed by the next business day. The person
requesting a hearing must concurrent with the request advance deposit
of the full amount of the penalty. Any administrative penalty that
has been deposited shall be refunded if it is determined, after a
hearing, that the person or entity charged with the violation was
not responsible for the violation or that there was no violation as
charged in the administrative penalty notice. The time requirement
for filing a request for hearing form shall be deemed jurisdictional
and may not be waived.
B.
The appeal will be heard by the administrative hearing board established by Section 9.29.086(D) of this chapter in accordance with the procedural rules set forth in that section. The administrative hearing board shall not determine the legality of this chapter or legality of the enforcement procedures used. It shall determine if the enforcing officer's decision conforms with this chapter and is supported by a preponderance of the evidence presented by the enforcing officer or his or her department and whether or not the penalty is merited and consistent with the intent of this chapter.
C.
The appeal may be heard separately or concurrently with any hearing by the administrative hearing board pursuant to Section 9.29.086 of this chapter.
D.
If appealed
to the administrative hearing board, the decision of the administrative
hearing board shall be final. Notice of the administrative hearing
board's final decision shall be served by certified or registered
mail on the affected persons. Payment will be due immediately.
(Ord. 1955 § 2, 2017)
A.
Any person who intends to request a hearing under Section 9.29.103 and is financially unable to make the advance deposit as required in that section may file a request for an advance deposit hardship waiver.
B.
The
request shall be filed with the head of the department issuing the
administrative penalty notice concurrent with the request for hearing.
C.
The requirement of depositing the full amount of the administrative penalties as described in Section 9.29.103 shall be stayed unless and until the head of the enforcing department makes a determination not to issue the advance deposit hardship waiver.
D.
The
head of the enforcing department, or designee, may waive the requirement
of an advance deposit and issue the waiver only if the person receiving
the administrative penalty notice submits to the head of the enforcing
department a sworn affidavit, together with any supporting documents
or materials, demonstrating to the satisfaction of the head of the
enforcing department, or designee of the person's actual financial
inability to deposit with the county the full amount of the penalty
in advance of the hearing.
E.
If the
head of the enforcing department determines not to issue an advance
deposit hardship waiver, the person shall remit the deposit to the
county within 10 days of the date of the decision or 30 days from
the date of issuance of the administrative penalty notice, whichever
is later.
F.
The
head of the enforcing department, or designee, shall issue a written
decision generally explaining the reasons for his or her determination
to issue or not issue the advance deposit hardship waiver. The written
decision shall be final.
G.
The
written decision of the head of the enforcing department shall be
mailed to the person who applied for the advance deposit hardship
waiver at the address provided in the application.
(Ord. 1955 § 2, 2017)
Pursuant to Section 1094.6 of the California Code of Civil Procedure,
or any other applicable code, any person who has been named in a notice
to abate and penalties for unlawful cannabis cultivation or any other
administrative penalty notice imposed under this chapter, may, following
exhaustion of administrative remedies, seek judicial review of the
order(s) by filing a petition for writ of mandate pursuant to law
and within the time periods provided by law. The filing of a petition
for writ of mandate to review the order(s) shall not stay any action
specified in the order.
(Ord. 1955 § 2, 2017)
A.
The enforcing officer may request a hearing before the board of supervisors to consider imposing a civil penalty in an amount or at a time different than provided for in Section 9.29.107. Notice of the hearing shall be sent by first class mail postage prepaid to the last known address of the persons to whom the penalty is to be imposed against.
B.
The
notice shall state the date, time and place of the hearing, which
in no event shall be sooner than 10 days from the date of mailing
and posting such notice unless mutually agreed to by the property
owner or responsible party and the enforcing officer, the specific
violations, conditions, or uses which constitute the code violation
on which the penalty is based.
C.
The
failure of any property owner or responsible party to receive any
notice required to be given or posted pursuant to the provisions of
this chapter shall not affect in any manner the validity of any proceedings
taken hereunder.
D.
At the
time fixed in the notice, the board of supervisors shall proceed to
hear testimony from any interested person regarding the specified
violation, condition or use deemed by the enforcing officer to be
the basis for the proposed administrative penalty, and any other matter
which the board of supervisors may deem pertinent thereto.
E.
Upon the conclusion of the hearing the board of supervisors will make a determination based on the evidence presented at the hearing, and may impose a civil penalty without regard to the limits in Section 9.29.107, which shall thereafter be collected pursuant to this chapter.
F.
The
decision of the board of supervisors shall be final and the administrative
penalty payable immediately.
(Ord. 1955 § 2, 2017)
A.
Administrative
penalties for the violation of this chapter shall be assessed as follows:
a fine not exceeding $250 for the first violation; a fine not exceeding
$500 for the second violation of the same ordinance within one year
from the date of the first violation; and a fine not exceeding $1,000
for each additional violation of the same ordinance within one year
from the date of the first violation.
B.
Unless
otherwise specified, the administrative penalty shall be due immediately.
C.
Where
the administrative penalty notice is issued for a continuing violation,
unless the violation creates an immediate danger to health or safety,
the responsible party shall be provided with an opportunity to correct
the violation prior to the imposition of the administrative penalty
in accordance with the following:
1.
If a responsible party fails to correct any violation within 30 days after the administrative penalty notice is served under Section 9.29.102, the administrative penalty established by the administrative penalty notice shall become effective and due immediately.
2.
The
administrative penalty, or any portion thereof, for a first-time violation
which has become effective following the 30 day corrective period
may be waived by the enforcing officer in his or her sole discretion
only if the responsible party corrects the violation in accordance
with all conditions established by the enforcing officer.
D.
Neither
imposition nor payment of an administrative penalty shall relieve
the responsible party from his or her obligation to correct the violation,
nor shall it bar further enforcement action by the enforcing officer.
(Ord. 1955 § 2, 2017)
A.
In the
event the responsible party fails to pay the administrative penalty
when due, the county may take any actions permitted by law or ordinance
to collect the unpaid penalty, which shall accrue interest at a rate
of 10% per month, commencing 30 days after the administrative penalty
becomes due and continuing until paid.
B.
In the
event a civil action is commenced to collect the administrative penalty,
the county shall be entitled to recover all costs associated with
the enforcement, investigation, establishment and collection of the
penalty. Costs include, but are not limited to, staff time and costs
incurred in the enforcement, investigation, establishment and the
collection or processing of the penalty and those costs set forth
in California Code of Civil Procedures Section 685.010 et seq., and
1033.5.
C.
The
amount of any unpaid administrative penalty, plus any other costs
as provided in this chapter, may be declared a lien on real property
owned by the responsible party within the county as follows:
1.
Notice
shall be given to the responsible party prior to the recordation of
the lien, and shall be mailed first class mail postage prepaid to
the last known address; and
2.
When
the enforcing officer records a lien listing delinquent unpaid administrative
penalties with the county recorder's office, the lien shall specify
the amount of the lien, the date of the code violations, the date
of the final administrative decision, the street address, legal description,
and assessor's parcel number of the parcel on which the lien is imposed,
and the name of the owner of the parcel according to the last equalized
assessment roll.
D.
The
amount of the unpaid administrative penalty, plus any other costs
as provided by this chapter, may be declared a special assessment
against any real property owned by the responsible party and located
within the county. The board of supervisors may impose the special
assessment on one or more parcels. The amount of the assessment shall
not exceed the amount of administrative penalty imposed for the violation,
plus any cost authorized by other chapters of this code. The enforcing
officer may present a resolution to the board of supervisors to declare
a special assessment, and, upon passage and adoption thereof, shall
cause a certified copy to be recorded with the Merced County recorder's
office. The assessment may then be collected at the same time and
in the same manner as ordinary taxes are collected, and shall be subjected
to the same penalties and the same procedure and sale in the case
of delinquency as provided for ordinary property taxes.
E.
The
county may withhold issuance of licenses, permits and other entitlement
for any property whenever an administrative penalty resulting from
a code violation on that property remains unpaid or the owner of the
property has outstanding, unpaid administrative penalties for violations
of the code.
F.
The
county may take any action permitted for enforcement of a civil money
judgment pursuant to the Enforcement of Law, California Code of Civil
Procedure Section 680.010 et seq.
(Ord. 1955 § 2, 2017)
All violations of this chapter are subject to punishment under the applicable punishments and penalties prescribed under state law. Further, all violations of this chapter are deemed a misdemeanor and subject to the punishments and penalties set forth in Chapter 1.28 of this Code. Notwithstanding the foregoing, this chapter does not authorize a criminal prosecution, arrest, or penalty inconsistent with or prohibited by Health and Safety Code Sections 11362.5 and 11362.7 et seq.
(Ord. 1955 § 2, 2017)
