This chapter is to be known and may be cited as the "City of
Kalamazoo Marihuana Commercial Business Ordinance."
A.
Purpose. The purpose of this chapter is to implement the provisions
of Public Act 281 of 2016, being the Michigan Medical Marihuana Facilities
Licensing Act (MMFLA), and 2018 Initiated Law No. 1, being the Michigan
Regulation and Taxation of Marihuana Act, so as to protect the public
health, safety, and welfare of residents of the City by setting forth
the manner in which marihuana commercial businesses can be operated
in the City. Further, the purpose of this chapter is to:
(1)
Authorize the establishment of marihuana businesses within the City
and provide standards and procedures for the review, issuance, renewal,
and revocation of City-issued permits for such businesses;
(2)
Impose fees to defray and recover the cost to the City of the administrative
and enforcement costs associated with marihuana businesses;
(3)
Coordinate with state laws and regulations addressing marihuana businesses.
B.
Legislative intent. This chapter authorizes the establishment of
marihuana businesses within the City of Kalamazoo consistent with
the provisions of the Michigan Medical Marihuana Facilities Licensing
Act and the Michigan Regulation and Taxation of Marihuana Act, subject
to the following:
(1)
Use, distribution, cultivation, production, possession, and transportation
of marihuana remains illegal under federal law, and marihuana remains
classified as a "controlled substance" by federal law. Nothing in
this chapter is intended to promote or condone the production, distribution,
or possession of marihuana in violation of any applicable law. Nothing
in this chapter is intended to grant immunity from any criminal prosecution
under state or federal law. This chapter does not protect patients,
caregivers, or the owners of properties on which a marihuana commercial
operation is occurring from prosecution or having their property seized
by federal law enforcement authorities.
(2)
This chapter is to be construed to protect the public health, safety
and welfare over commercial marihuana business interests. The operation
of a licensed marihuana business in the City is a revocable privilege
and not a right in the City. Nothing in this chapter is to be construed
to grant a property right for an individual or business entity to
engage, obtain, or have renewed a City-issued permit to engage in
the use, distribution, cultivation, production, possession, transportation
or sale of marihuana as a commercial enterprise in the City. The City
determines that the commercialization of marihuana is a "closely regulated
industry" as that term is used in U.S. Supreme Court jurisprudence.
(3)
Any individual or business entity which purports to have engaged
in the use, distribution, cultivation, production, possession, transportation
or sale of marihuana as a commercial enterprise in the City without
obtaining the required authorization required by this chapter is deemed
to be an illegally established nuisance, and as such is not entitled
to legal nonconforming status under this chapter, the City Zoning
Code, or state statutory or common law.
(4)
Nothing in this chapter is intended to grant immunity from criminal
or civil prosecution, penalty or sanction for the cultivation, manufacture,
possession, use, sale, distribution or transport of marihuana in any
form that is not in strict compliance with the Michigan Medical Marihuana
Act, the Medical Marihuana Facilities Licensing Act, the Marihuana
Tracking Act, the Michigan Regulation and Taxation of Marihuana Act,
and all applicable administrative rules promulgated by the State of
Michigan regarding the commercialization of marihuana. Strict compliance
with all applicable state laws and regulations is deemed a requirement
for the issuance or renewal of any permit issued under this chapter,
and noncompliance with any applicable state law or regulation is grounds
for the revocation or nonrenewal of any permit issued under the terms
of this chapter.
C.
Indemnification of City.
(1)
By accepting a permit issued pursuant to this chapter, the holder
waives and releases the City, its officers, elected officials, and
employees from any liability for injuries, damages or liabilities
of any kind that result from any arrest or prosecution of marihuana
business owners, operators, employees, clients or customers for a
violation of state or federal laws, rules or regulations.
(2)
By accepting a permit issued pursuant to this chapter, the holder
agrees to indemnify, defend and hold harmless the City, its officers,
elected officials, employees, and insurers, against all liability,
claims or demands arising on account of any claim of diminution of
property value by a property owner whose property is located in proximity
to a licensed operating marihuana business arising out of, claimed
to have arisen out of, or in any manner connected with the operation
of a marihuana business or any claim based on an alleged injury to
business or property by reason of a claimed violation of the federal
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§ 1964(c).
D.
Reservation of legislative prerogative.
(1)
The City Commission reserves the right to amend or repeal this chapter
in any manner, including, but not limited to, the complete prohibition
of any type of marihuana business or limiting the number and types
of marihuana businesses authorized to operate in the City.
(2)
Nothing in this chapter is to be construed to grant or grandfather
any marihuana business a vested right, license, permit or privilege
for continued operations within the City.
(3)
Given the adoption of 2018 Initiated Law No. 1, which legalized the
possession and use of marihuana in Michigan by persons age 21 and
older, Section 199 of the City Charter, providing for the establishment
of medical cannabis dispensaries, by its own terms, is null and void.
Therefore, there is no rational basis to treat or make allowances
for treating a medical cannabis dispensary apart from a provisioning
center.
A.
Unless defined by this chapter, any term used in this chapter that
is defined by the Michigan Medical Marihuana Act, the Medical Marihuana
Facilities Licensing Act, Michigan Regulation and Taxation of Marihuana
Act, or the Administrative Rules promulgated by the Michigan Department
of Licensing and Regulatory Affairs addressing marihuana shall have
the definition given in those Acts and Rules.
B.
APPLICANT
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
CULTIVATE
DEPARTMENT
DESIGNATED CONSUMPTION LOUNGE
EQUIVALENT LICENSE
(1)
(2)
(3)
(4)
(5)
EXCESS GROWER
GROWER
INDUSTRIAL HEMP
INDUSTRIAL HEMP RESEARCH AND DEVELOPMENT ACT
LICENSEE
LIMITED CONTACT TRANSACTIONS
MARIHUANA
MARIHUANA COMMERCIAL BUSINESS or MARIHUANA BUSINESS
(1)
(2)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
MARIHUANA ESTABLISHMENT or ESTABLISHMENT
MARIHUANA FACILITY or FACILITY
MARIHUANA PLANT
MARIHUANA SALES LOCATION
MARIHUANA-INFUSED PRODUCT
MARIHUANA-RELATED BUSINESS
MATURE MARIHUANA PLANT
MICHIGAN MEDICAL MARIHUANA ACT or MMMA
MICHIGAN MEDICAL MARIHUANA FACILITIES LICENSING ACT or MMFLA
MICHIGAN REGULATION AND TAXATION OF MARIHUANA ACT or MRTMA
MICROBUSINESS
MICROBUSINESS, CLASS A or CLASS A MICROBUSINESS
OPERATING PERMIT or PERMIT
PERMITTEE
PERSON
PROCESS or PROCESSING
PROCESSOR
PROVISIONING CENTER
REGISTERED PRIMARY CAREGIVER or CAREGIVER
REGISTERED QUALIFYING PATIENT or PATIENT
RETAILER
RULES
SAFETY COMPLIANCE FACILITY
SECURE TRANSPORTER
SOCIAL EQUITY-QUALIFIED BUSINESS
STATE OPERATING LICENSE or LICENSE
As used in this chapter, the following terms shall have the meanings
indicated:
A person who applies for a City-issued permit to operate
a marihuana commercial business in accordance with the terms of this
chapter and the City Zoning Code. With respect to disclosures in an
application for a permit issued pursuant to this chapter for purposes
of ineligibility for a permit and the transfer of an interest in an
issued permit, the term "applicant" includes a managerial employee
of the applicant, any person who holds any direct or indirect ownership
interest of more than 10% in the marihuana commercial business, and
the following true parties of interest for each type of applicant:
For an individual or sole proprietorship: the proprietor and
spouse.
For a partnership and limited liability partnership: all partners
and their spouses.
For a limited partnership and limited liability limited partnership:
all general and limited partners, not including a limited partner
holding a direct or indirect ownership interest of 10% or less and
who does not exercise control over or participate in the management
of the partnership, and their spouses.
For a limited liability company: all members and managers, not
including a member holding a direct or indirect ownership interest
of 10% or less and who does not exercise control over or participate
in the management of the company, and their spouses.
For a privately held corporation: all corporate officers or
persons with equivalent titles and their spouses, all directors and
their spouses, and all stockholders, not including those holding a
direct or indirect ownership interest of 10% or less, and their spouses.
For a publicly held corporation: all corporate officers or persons
with equivalent titles and their spouses, all directors and their
spouses, and all stockholders, not including those holding a direct
or indirect ownership interest of 10% or less, and their spouses.
For a multilevel ownership enterprise: any entity or person
that receives or has the right to receive more than 10% of the gross
or net profit from the enterprise during any full or partial calendar
or fiscal year.
For a nonprofit corporation: all individuals and entities with
membership or shareholder rights in accordance with the articles of
incorporation or the bylaws and their spouses.
For a trust: all trustees, any individual or body able to control
and direct affairs of the trust, and any beneficiary who receives
or has the right to receive more than 10% of the gross or net profit
of the trust during any full or partial calendar or fiscal year, and
their spouses.
To propagate, breed, grow, harvest, dry, cure, or separate
parts of the marihuana plant by manual or mechanical means.
The Michigan Department of Licensing and Regulatory Affairs,
or its successor agency.
A marihuana-related business authorized to permit individuals
21 years of age and older to consume marihuana products on the licensed
premises.
Any of the following state operating licenses when held by
a single licensee:
Grower licenses of any class under both the MMFLA and MRTMA.
Processor licenses under both the MMFLA and MRTMA.
Secure transporter licenses under both the MMFLA and MRTMA.
Safety compliance facility licenses under both the MMFLA and
MRTMA.
A provisioning center license under the MMFLA and a retailer
license under the MRTMA.
The holder of five Class C grower licenses under the MRTMA
and at least two Class C grower licenses under the MMFLA.
A licensee that cultivates, dries, trims, or cures and packages
marihuana for sale or transfer to a processor, provisioning center
or retailer, or another grower. The term also includes a licensed
excess grower.
As this term is defined at MCL 333.27953.
Public Act 547 of 2014, as may be amended.
A person holding a state license to operate a marihuana facility
or marihuana establishment.
Curbside or drive-through window sales or service transactions
at a marijuana sales location.
As this term is defined at MCL 333.27953. For purposes of
this chapter, marihuana does not include industrial hemp.
Includes the following adult-use marihuana establishments, whether
operated for profit or not for profit:
A grower and excess grower.
A processor.
A secure transporter.
A retailer.
A safety compliance facility.
A microbusiness.
Any other type of marihuana-related business licensed by the Department and permitted by this chapter and the City Zoning Ordinance as set forth in Chapter 50 of this Kalamazoo City Code.
A location at which a licensee is licensed to operate under
the MRTMA and this chapter.
A location at which a licensee is licensed to operate under
the MMFLA and this chapter.
Any plant of the genus Cannabis but does not include industrial
hemp.
Refers to a provisioning center, retailer, microbusiness
or Class A microbusiness.
A topical formulation, tincture, beverage, edible substance,
or similar product containing marihuana and other ingredients and
that is intended for human consumption.
An adult-use marihuana establishment operating pursuant to
a special license issued by the Department, and includes designated
consumption lounges, excess marihuana growers, Class A microbusinesses,
marihuana event organizers, temporary marihuana events, and marihuana
educational research facilities.
A flowering or nonflowering marihuana plant that has taken
root and is taller than eight inches from the growing or cultivating
medium or wider than eight inches, produced from a cutting, clipping,
tissue culture, or seedling, and that is in a growing or cultivating
medium or a growing or cultivating container.
2008 Initiated Law 1, MCLA § 333.26421 et seq.,
as may be amended.
Public Act 281 of 2016, MCLA § 333.27101 et seq.,
as may be amended.
2018 Initiated Law 1, MCLA § 333.27951 et seq.,
as may be amended.
A marihuana establishment authorized to cultivate not more
than 150 mature marihuana plants, process and package marihuana, and
sell or transfer marihuana to individuals 21 years of age and older
and to a safety compliance facility, but not to other marihuana establishments.
A marihuana establishment authorized to operate at a single
location and cultivate not more than 300 mature marihuana plants;
package marihuana; purchase marihuana concentrate and marihuana-infused
products from licensed marihuana processors; sell or transfer marihuana
and marihuana-infused products to individuals 21 years of age and
older; and transfer marihuana to a safety compliance facility for
testing.
The permit issued pursuant to this chapter authorizing the
operation of a marihuana commercial business in the City.
A person who holds a permit issued by the City pursuant to
this chapter to operate a marihuana business.
An individual, corporation, limited liability company, partnership,
limited partnership, limited liability partnership, limited liability
limited partnership, trust, or other legal entity, and includes persons
within the definition of "applicant" as that term is used in this
chapter.
The separation or preparation of parts of the marihuana plant
and to compound, blend, extract, infuse, or otherwise make or prepare
marihuana concentrate or marihuana-infused products.
A licensee that purchases or obtains marihuana from a grower
and processes the marihuana and sells or transfers it in packaged
form to a provisioning center, retailer, Class A microbusiness, or
another processor. A processor is not prohibited from handling, processing,
marketing or brokering industrial hemp pursuant to the Industrial
Hemp Research and Development Act.
A licensee that purchases marihuana from a grower or processor
and sells, supplies, or provides marihuana to registered qualifying
patients, directly or through the patients' registered primary caregivers.
"Provisioning center" includes any commercial property where marihuana
is sold at retail to registered qualifying patients or registered
primary caregivers and includes medical cannabis dispensaries. A noncommercial
location used by a registered primary caregiver to assist a qualifying
patient connected to the caregiver through the Department's marihuana
registration process in accordance with the Michigan Medical Marihuana
Act is not a provisioning center for purposes of this chapter.
A primary caregiver who has been issued a current registry
identification card under the MMMA.
A qualifying patient who has been issued a current registry
identification card under the MMMA or a visiting qualifying patient
as that term is defined in the MMMA.
A licensee that obtains marihuana from marihuana establishments
and sells or otherwise transfers marihuana to marihuana establishments
and to individuals who are 21 years of age or older.
The administrative rules promulgated and from time to time
amended by the Department to implement the MMFLA and MRTMA.
A licensee that receives marihuana from a marihuana business
or from a registered primary caregiver, tests the marihuana and provides
certification of the potency of tetrahydrocannabinol and other cannabinoids,
and the presence of contaminants. A safety compliance facility may
receive industrial hemp for testing pursuant to the Industrial Hemp
Research and Development Act.
A licensee that may store marihuana and transports marihuana
between marihuana businesses for a fee.
A marihuana establishment operated by an applicant that qualifies
for the benefits offered under the social equity program administered
by either the Department or the City.
A license that is issued by the Department under the MMFLA
or MRTMA that allows the licensee to operate a marihuana commercial
business, as specified in the license.
