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Kalkaska Cannabis Ordinances

7.15 MEDICAL MARIJUANA RESIDENTIAL CULTIVATION


Residential Cultivation is the cultivation of medical marihuana by a patient or caregiver as defined by the Michigan Medical Marihuana Act, initiated Law 1 of 2008. Residential Cultivation is allowed in any zoning district where residential uses are allowed or exist if it complies with the following:


A. It has a valid license from both the Village of Kalkaska and the patient or caregiver has proper state registry identification card.


B. Any artificial lighting must be shielded to prevent glare and light trespass and must not be visible from neighboring properties, adjacent streets or public right of ways.


C. All lighting, and associated equipment, such as but not limited to lamps, lights, ballasts, switches, controllers, computers, and any and all other electrical, electromechanical, or electronic devices employed on the premises must meet and fully comply with all applicable rules as required by the Federal Communications Commission (“FCC”), including but not limited to 47 CFR 15 (FCC Part 15) and 47 CFR 18 (FCC Part 18). Further, there must be no harmful and/or interfering electromagnetic emissions to any one-way or two-way radio communications, on or off the premises. Compliance with FCC Rules and Regulations is a condition of licensure by the Village.


D. All activities shall be conducted so as not to create or permit trespass or spillage of dust, glare, sounds, noise, vibrations, fumes, odors, or light, onto neighboring properties, adjacent streets or public right of ways. Odors shall be defined by the following terms. Odor shall be deemed unlawful and subject to citation if the odor is detectable at a level equal to or greater than a Dilution to Threshold (D/T) ration of seven (7), for two (2) consecutive samples taken not less than eight (8) hours apart, as measured by a Field Olfactometer device, at any point beyond the boundary of the property suspected as emitting an odor.


KALKASKA CODE-BUSINESS REGULATIONS


§ 120.01 Title


This ordinance shall be known and cited as the Village of Kalkaska Licensed Marihuana Facilities Ordinance.


§120.02 Purpose


The purpose of this ordinance is to regulate and license the conduct of activity pursuant to the Michigan Medical Marihuana Act, Public Act 1 of 2008 as amended, the Medical Marihuana Facilities Licensing Act, Public Act 281 of 2016, and the Marihuana Tracking Act, Public Act 282 of 2016 (the Acts), Michigan Regulation & Taxation of Marihuana Act in order to:


A) Protect the health, safety, and welfare of the general public:


B) Establish a set of rules and regulations which are fair and equitable for those interested in establishing licensed marihuana related activities or Licensed Marihuana Facilities in compliance with the Acts:


C) Provide reasonable regulation pursuant to the Village’s general police power granted to villages by the Michigan Constitution of 1963 and the General Law Village Act, MCL 61.1 et seq.


The Village does not intend that registration and regulation under this ordinance be constructed as a finding that such businesses and activities are legal under federal law. Although some specific uses of marihuana are purported to be exempt from prosecution by the Acts, marihuana continues to be classified as a Schedule 1 controlled substance under federal law making it unlawful under federal law to use, manufacture, distribute or dispense marihuana, or to possess it with intent to manufacture, distribute or dispense. By requiring registration and compliance with requirements as provided in this ordinance, the Village intends to protect, to the extent possible, the public health, safety and welfare of the residents of and visitors to the Village, including but not limited to registered Qualifying Patients, from harm that may result from the activities of persons who unilaterally or on the advice of their own attorney determine that they may legally operate a business involved in the possession, use, manufacture, distribution or dispensing or medical marihuana.


Nothing in this ordinance is intended to grant, nor shall it be construed as granting, immunity from criminal prosecution, for use, manufacture, distribution or dispensing of marihuana not in strict compliance with the Acts.


This ordinance permits authorization for certain activities based on the Acts. Nothing in this ordinance shall be construed as allowing persons to engage in conduct that endangers others or causes a public nuisance, or to allow use, cultivation, growth, possession, or control of marihuana not in strict accordance with the express authorization of the Act and this ordinance; and, nothing in this ordinance shall be construed to undermine or provide immunity from federal law as it may be enforced by the federal or state government relative to the cultivation, distribution, or use of marihuana. Thus, the authorization of KALKASKA CODE-BUSINESS REGULATIONS 52 activity, and the approval of a license under this ordinance shall not have the effect of superseding or nullifying federal law applicable to the cultivation, use, and possession of marihuana, and all applicants and grantees of licenses are on notice that they may be subject to prosecution and civil penalty, including forfeiture of property.


§120.03 Legal Basis


This ordinance is enacted pursuant to the statutory authority granted by MCL 67.1 and 67.2, authorizing the Village Council to adopt licensing ordinances and regulations to secure the public health, safety and general welfare.


§120.04 Definitions


As defined by MRTMA, MMFLA and LARA rules and regulations.


§120.05 Regulations for Licensed Marihuana Facilities


All regulations of MMFLA, MRTMA and Business Regulations of LARA are incorporated here.


§120. 06 Certificate of Registration Required


A Licensed Marihuana Facility, or previously licensed marihuana uses, whether proposed, or existing at time of enactment of this ordinance, shall not be permitted within the Village at a location unless such location has obtained a current Certificate of Registration under this ordinance which shall constitute a license pursuant to the Kalkaska Code. Certificate of Registration is required for and shall be subject to the following:


1) The exact location of a Licensed Marihuana Facility including the space within a building so used shall be clearly identified on the Certificate;


2) By way of exception, it is not the intent of this ordinance to require a Certificate of Registration for the principal residence of a Qualified Patient where marihuana is cultivated or used exclusively for such patient’s personal consumption however, a location other than a patient’s principal residence where a patient cultivates marihuana shall be subject to the Certificate of Registration requirements of this ordinance.


3) The registration requirement in this ordinance applies to all Licensed Marihuana Facilities that are proposed or existing on the effective date of this ordinance.


4) The registration requirement set forth in this ordinance shall be in addition to, and not in lieu of, any other licensing and permitting requirement imposed by any other state or local law.


5) A Certificate of Registration issued under this ordinance shall be valid for one year from date of issue, unless revoked for violation(s), in which case it is considered to be null and void.


6) No Certificate of Registration issued under this ordinance may be transferred to a different location without the submission of a new application pursuant to Section 120.07 of this Ordinance and approval by the Village, and no Certificate of Registration is valid for any location other than KALKASKA CODE-BUSINESS REGULATIONS 53 the location specified in the Certificate of Registration. The Village shall have discretion as to whether to approve the transfer of a Certificate of Registration to a different location.


7) A Certificate of Registration issued under this Ordinance may be transferred to another person upon approval from the Village. Without the submission of a new application pursuant to Section 120.07 of this Ordinance and approval by the Village in order to request such approval, the registrant shall submit a request in writing to the office of the Village of Kalkaska. The Village has discretion as to whether to approve or deny the transfer of a Certificate of Registration, but in no case shall such transfer be approved until the person to whom the Certificate of Registration will be transferred has submitted both of the following to the Village: A. A complete application meeting the requirements of Section 120.07 of this Ordinance; and B. Any required registration fees.


8) Any change in ownership of a registrant that involves a change in, transfer of, or acquisition of all of the equity in the licensed marijuana facility requires the approval of the Village. In order to request such approval, the registrant shall submit a request in writing to the office of the Village of Kalkaska. The Village has discretion as to whether to approve or deny the change in ownership, but in no case shall the transfer be approved until the person or persons to whom the equity in the registrant will be transferred has submitted both of the following to the Village: A. A complete application meeting the requirements of Section 120.07 of this Ordinance; and B. Any required registration fees.


9) Starting November 2019 the Village of Kalkaska shall invoke a two year moratorium on all MRTMA retail Licenses, except for marihuana microbusinesses, unless Applied for by MMFLA Kalkaska Village License holders.


§120. 07 Application for Certificate of Registration


The requirement of this ordinance is to license a person(s) and a specific location. Except as provided in Section 120.06, any change in ownership of the registrant, or change which would result in a person becoming a new supplemental applicant of the registrant, requires the registrant to file with the Village to perform a background check on the new supplemental applicant. An application for a Certificate of Registration under this section shall be submitted to the Office of the Village of Kalkaska and shall conform to the following specifications. On the application, an applicant shall:


1) Include the address and legal description of the precise premises (other than a patient’s principal residence) at which there shall be a Licensed Marihuana Facility. The fact that a caregiver or other person providing assistance to patients also has an ID Card as a patient shall not relieve the obligation to provide this information.


2) Specify the name and address of the place where all unused portions of marihuana plants cultivate in connection with the use of marihuana or caregiver activity shall be disposed. KALKASKA CODE-BUSINESS REGULATIONS 54


3) Describe the enclosed, locked facility, which must be contained within or permanently affixed to real property, in which any and all cultivation of marihuana is proposed to occur, or where marihuana is stored, with such description including: location in building; measurements, in feet, of the floor dimensions and height; a general description of the security measures in place, and a narrative providing an overview of access control for the facility. No specific information such as lock or access codes or combinations is to be provided on the application.


4) If a Provisioning Center, describe all locations in the premises where the sale or transfer to a qualified patient or caregiver shall take place, and include a floorplan.


5) If a Grower, specify the Class under which the Grower seeks the license. For safety and other code inspection purposes, it shall describe and provide detailed specifications of all lights, equipment, and all other electrical, plumbing, and other means to be used to facilitate the cultivation of marihuana plants, to a degree of detail satisfactory to the Village of Kalkaska Marihuana Officer.


6) Manufacturer documentation must be provided certifying that all lighting, and associated equipment, such as but not limited to grow lamps, grow lights, ballasts, switches, controllers, and any other electrical or electronic devices employed on the premises meets and fully complies with all applicable rules as required by the Federal Communications Commission (“FCC”), including but not limited to FCC Part 15 and FCC Part 18. Further there must be no harmful and/or interfering electromagnetic emissions with either one-way or two-way electronic communications, on or off the premises.


7) Include a statement attesting and consenting that all activities will be conducted so as not to create or permit trespass or spillage of dust, glare, sounds, noise, vibrations, fumes, odors, or light, onto neighboring properties, adjacent streets or public right of ways.


8) Include a statement attesting and consenting that all artificial lighting will be shielded to prevent glare and light trespass and must not and will not be visible, from neighboring properties, adjacent streets or public right of ways.


9) May not contain the name, home address, or date of birth of a patient.


10) The name and address of all owners of the real property where the Licensed Marihuana Facility is located, including a statement by each owner attesting to their knowledge, understanding, and approval of such activity upon their property.


11) Name, address, and other contact information of all Applicants as defined above. A statement attesting whether an Applicant has been indicted for, charged with, arrested for, or convicted of, pled guilty or nolo contendere to, forfeited bail concerning any criminal offense under the laws of any jurisdiction, either felony or controlled substance related misdemeanor, not including traffic violations, regardless of whether the offense has been reversed on appeal or otherwise, including the date, the name and location of the court, arresting agency, and prosecuting agency, the case caption, the docket number, the offense, the disposition, and the location and length of incarceration.


12) A zoning compliance verification that shows the structure for the proposed Licensed Marihuana Facility meets the requirements of the applicable Village Zoning Code.


13) A building compliance verification or a certificate of occupancy that shows the structure for the proposed Licensed Marihuana Facility meets the requirements of the applicable use group under the Michigan Building Code.


14) Payment of a non-refundable registration fee, which shall be determined by resolution of the Village Council. Fees for zoning compliance permits, building compliance verification, and certificates of occupancy shall be separate from the registration fee.


§120. 08 Standards for Certificate


In addition to the regulations stated above, the requirements and standards for approval of a Certificate of Registration for the activity permitted are as follows:


1) Locations for any facility must comply with zoning.


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2) A Licensed Marihuana Grower’s cultivation shall occur inside of an enclosed, locked facility within the confines of a building registered under this section, and such activities shall occur only in locations not visible to the public and adjoining uses, provided however, this subsection shall not prohibit a caregiver from assisting a patient at the patient’s principal residence or at a hospital.


3) Documentation proving that electrical and plumbing inspectors (and/or other inspector(s) as required by various codes, and/or by the Village Marihuana Officer) have inspected and confirmed that all electrical wiring, lighting, plumbing, and any other related equipment and/or means used to facilitate the growth or cultivation of marihuana plants, are in full and complete compliance with respective applicable code(s).


4) For proposed facilities, a site plan indication that all electrical and plumbing requirements are clearly shown. During and at completion of inspections of all electrical, plumbing and other related equipment are in full and complete compliance with respective applicable code(s). A Certification of Registration may be issued upon an administrative review of a site plan. Should the completed structure not pass all necessary inspections, the Certificate shall be null and void.


5) All use of property or land must be in accordance with an approved application, and, be in full compliance with all other Village ordinances.


6) An Applicant shall meet all requirements found in the Acts.


7) The Applicant has signed and sworn that the Applicant has not knowingly submitted an Application containing false information.


8) A satisfactory background investigation, experience in the specific Licensed Marihuana Facility activity, cooperation with law enforcement, community investment, proof of financial stability, and a good faith effort to recognize and address community sensibilities and sensitivities, all equally weighted, as evaluated by the Village of Kalkaska Marihuana Officer and his designees.


§120.09 Standards for Disqualification:


An applicant cannot obtain a Village of Kalkaska license if any of the following is true:


1. The applicant is ineligible if he or she has knowingly submitted an application for a license that contains false information.


2. The applicant is ineligible if he or she fails to demonstrate the ability to maintain adequate premises liability and casualty insurance for its proposed marihuana facility (an insurance policy that covers at a minimum of $100,000).


3. The applicant cannot hold an elective office of a governmental unit of this state, another state, or the federal government; is a member of or employed by a regulatory body of a governmental unit in this state, another state, or the federal government; or is employed by a governmental unit of this state. This subdivision does not apply to an elected officer of or employee of a federally recognized Indian tribe or to an elected precinct delegate.


4. The applicant fails to meet other Village criteria established by rule.


5. The applicant is ineligible if he or she has been convicted of or released from incarceration for a felony under the laws of this state, any other state, or the United States (federal law) within the past 10 years or has been convicted of a controlled substance-related felony within the past 10 years.


6. The applicant is ineligible if he or she has been convicted of a misdemeanor involving a controlled substance, theft, dishonesty, or fraud in any state within the past 5 years.


7. The applicant is ineligible if he or she has been found responsible for violating a local ordinance in any state involving a controlled substance, dishonesty, theft, or fraud that substantially corresponds to a misdemeanor in that state within the past 5 years.


The Village of Kalkaska may take into consideration the following:


1. Whether the applicant has been indicted for, charged with, arrested for, or convicted of, pled guilty or nolo contendere to, forfeited bail concerning, or had expunged any relevant criminal offense under the laws of any jurisdiction, either felony or misdemeanor, not including traffic violations, regardless of whether the offense has been expunged, pardoned, or reversed on appeal or otherwise.


2. Any misdemeanor involving: malicious destruction of property, assault, trespass, and/or an act of violence against persons or property within the last 5 years from conviction, as additional conditions of disqualification.


§120. 10 Inspection of Licensed Marihuana Facility prior to Issuance of Certificate of Registration


1. Additionally, contingent to licensing and registration of a Licensed Marijuana Facility, the Village Marihuana Officer may require and is permitted to coordinate electrical and plumbing inspectors, and any other inspectors deemed necessary, with regard to a site of such cultivation, or point of sale, for the purpose of determining whether all lights, plumbing, equipment, and any other means used to facilitate the Licensed Marihuana Facility are in accordance with both this ordinance, and, any other applicable local, State, or Federal code.


2. This section is not meant to imply that the Village of Kalkaska Marihuana Officer is responsible for determining all such inspections that are necessary, but that he may require additional inspections that he feels in his judgement are prudent and/or necessary.


3. In carrying out provisions of the subsection, community officials will not require the name or address of patients, but rather, the intent of this subsection is to focus on the premises to ensure public health and safety are accommodated.


4. A random compliance review for each Certificate of Registration may be conducted by the Village of Kalkaska.


§120. 11 Renewal or Amendment of Existing Certificate of Registration


The same procedures for application for and issuance of a new Certificate of Registration shall apply to renewal, or amendment, of an existing Certificate of Registration, subject also to the following:


1) To renew an existing Certificate of Registration, the registrant shall submit an application with full supporting documentation, in the same manner and degree as is required to apply for a new Certificate of Registration, no later than thirty (30) days, and no sooner than (90) days, before the expiration date.


2) An amended application shall be submitted when there is a change in any information the applicant was required to provide in the most recent application on file with the Village. The scope of the amended application and the information required to be disclosed shall be at the sole discretion of the Village. An amended application shall be accompanied by any required registration fees.


3) An application to change the location of an existing Certificate of Registration shall require a new application, with full supporting documentation, must meet all requirements, and shall be processed in the same manner as provided for the issuance of a new Certificate of Registration.


4) The Applicant has used the property or land in accordance with any prior approved application for that property.


5) Applicants must include proof of valid and current State of Michigan pre-qualification or proof of State of Michigan licensure within 11 months of licensure by the Village.


6) Applications for renewal of valid and current Licensed Marijuana Facilities of any class limited in the number of licenses issued by the Village shall be reviewed and considered for renewal before new applications for that class will be considered.


§120. 12 Certificate of Registration Revocation


1) A Certificate of Registration issued under this ordinance shall be revoked for any of the following violations:


a. Any person required to be named on the application for the Certificate of Registration is convicted of or found responsible for violation of any provision of this ordinance;


b. The application contains any misrepresentation or omission of any material fact, or false or misleading information, or the applicant has provided the Village with any other false or misleading information;


c. Marihuana is transferred or otherwise distributed on the premises in violation of this ordinance or any other applicable state of local law, rule or regulation;


d. The Facility is operated or is operating in violation of the specifications of the Certificate of Registration application, any additional applicable conditions or approvals required by the Village, or any other applicable state or local law, rule or regulation.


e. The Village, or the County or the department of any other governmental entity with jurisdiction, has closed the business temporarily or permanently or issues and sanction for failure to comply with health and safety provisions of this ordinance or otherwise applicable to the business or any other applicable state or local law.


f. The Facility is determined to have become a public nuisance.


g. Other reasons pursuant to Section 110.11 of Title XI of the Kalkaska Ordinances.


2) The procedure for revocation for the above violations shall be pursuant to Section 110.12 of Title XI of the Kalkaska Ordinances.


§120. 13 Revocation Not Exclusive Penalty


Nothing in this ordinance shall be deemed to prohibit the Village from imposing other penalties authorized by this code or other ordinance of the Village, including filing a public nuisance action or any other legal action in a court of competent jurisdiction.


§120. 14 Civil Infraction


Any person, firm, or corporation who violates any of the provisions of this ordinance shall be deemed to be responsible for a municipal civil infraction as defined by Michigan statute which shall be punishable by a civil fine for each violation in accordance with the schedule set forth herein, along with costs which may include all expenses, direct or indirect, which the Village incurs in connection with the municipal civil infraction. A violator of this ordinance shall also be subject to such additional sanctions and judicial orders as are authorized under Michigan law. Each day that a violation continues to exist shall constitute a separate violation of this ordinance. The Village’s Marihuana Officer or any police officer may issue appearance ticket citations for violations of this ordinance. The provisions of this ordinance may also be enforced by suit for injunctive relief.


§120. 15 Civil Fines for Municipal Infractions


Civil fines for municipal civil infractions under this ordinance may be assessed in accordance with the following schedule:


Fine or Suspension


1st violation $ 500.00


2nd violation $1000.00


3rd violation $2000.00


The fines listed above supersede those reflected in Village Ordinance 35.02.


§120. 16 Severability


The provisions of this ordinance are hereby declared to be severable and if any clause, sentence, word, section or provision is declared void or unenforceable for any reason by any court of competent jurisdiction, it shall not affect any portion of this ordinance other than said part or portion thereof.

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