NOTICE OF ADOPTION
LINCOLN COUNTY ORDINANCE # 2107-59
First Reading: June 8, 2021
Second Reading: July 29, 2021
Adopted: July 29, 2021
Publication Date: August 6, 2021
Effective Date: August 6, 2021
AN ORDINANCE TO REGULATE MEDICAL CANNABIS
WITHIN LINCOLN COUNTY
WHEREAS, the State of South Dakota permits the sale and consumption of medical cannabis pursuant to South Dakota Codified Law (SDCL) Chapter 34-20G and,
WHEREAS, pursuant to SDCL 34-20G-55, county government may require a local registration, license, or permit for a medical cannabis establishment to operate within that county, and
WHEREAS, pursuant to SDCL 34-20G-58, county government may enact ordinances or regulations governing the time, place, manner, and number of licensees operating within its jurisdiction; and
WHEREAS, also pursuant to SDCL 34-20G-58, county government may establish civil penalties for violation of an ordinance governing the time, place, and manner of medical cannabis establishments that operate locally, and
WHEREAS, under the provisions of SDCL 34-20G-60, county government may require a medical cannabis establishment to obtain a county license, permit, or registration prior to operating, and may charge a reasonable fee for that license, permit, or registration, and
WHEREAS, the County believes that regulation of medical cannabis is necessary for the health and safety of this community SDCL 7-18A-8; then and therefore,
WHEREAS, the State of South Dakota permits the sale and consumption of cannabis pursuant to South Dakota Codified Law and Amendment A medical cannabis establishments licensed under this ordinance may sell cannabis for adult use so long as they comply with the provisions of the Department of Revenue Amendment A.
BE IT ORDAINED BY THE LINCOLN COUNTY COMMISSION AS FOLLOWS:
Section 1. Definitions.
The terms and definitions found in SDCL 34-20G-1 are specifically adopted for the purpose of this Ordinance. Specifically,
(1) “Allowable amount of cannabis,” means:
a. Three ounces of cannabis or less;
b. The quantity of cannabis products as established by rules promulgated by the department under SDCL 34-20G-72;
c. If the cardholder has a registry identification card allowing cultivation, three cannabis plants minimum or as prescribed by a physician; and
d. If the cardholder has a registry identification card allowing cultivation, the amount of cannabis and cannabis products that were produced from the cardholder’s allowable plants, if the cannabis and cannabis products are possessed at the same property where the plants were cultivated.
(2) “Bona fide practitioner-patient relationship,” means:
a. A practitioner and patient have a treatment or consulting relationship, during the course of which the practitioner has completed an assessment of the patient’s medical history and current medical condition, including an appropriate in-person physical examination;
b. The practitioner has consulted with the patient with respect to the patient’s debilitating medical condition; and
c. The practitioner is available to or offers to provide follow-up care and treatment to the patient, including patient examinations;
(3) “Cannabis products,” means any concentrated cannabis, cannabis extracts, and products that are infused with cannabis or an extract thereof, and are intended for use or consumption by humans. The term includes edible cannabis products, beverages, topical products, ointments, oils, and tinctures;
(4) “Cannabis product manufacturing facility,” means an entity registered with the department pursuant to this chapter that acquires, possesses, manufactures, delivers, transfers, transports, supplies, or sells cannabis products to a medical cannabis dispensary;
(5) “Cannabis testing facility” or “testing facility,” means an independent entity registered with the department pursuant to this chapter to analyze the safety and potency of cannabis;
(6) “Cardholder,” means a qualifying patient or a designated caregiver who has been issued and possesses a valid registry identification card;
(7) “Cultivation facility,” means an entity registered with the department pursuant to this chapter that acquires, possesses, cultivates, delivers, transfers, transports, supplies, or sells cannabis and related supplies to a medical cannabis establishment;
(8) “Debilitating medical condition,” means:
a. A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis; or
b. Any other medical condition or its treatment added by the department, as provided for in SDCL 34-20G-26
(9) “Department,” means the South Dakota Department of Health
(10) “Designated caregiver,” means a person who:
a. Is at least twenty-one years of age;
b. Has agreed to assist with a qualifying patient's medical use of cannabis;
c. Has not been convicted of a disqualifying felony offense; and
d. Assists no more than five qualifying patients with the medical use of cannabis, unless the designated caregiver's qualifying patients each reside in or are admitted to a health care facility or residential care facility where the designated caregiver is employed;
(11) “Disqualifying felony offense,” means a violent crime that was classified as a felony in the jurisdiction where the person was convicted;
(12) “Edible cannabis products,” means any product that:
a. Contains or is infused with cannabis or an extract thereof;
b. Is intended for human consumption by oral ingestion; and
c. Is presented in the form of foodstuffs, beverages, extracts, oils, tinctures, or other similar products;
(13) “Enclosed, locked facility,” means any closet, room, greenhouse, building, or other enclosed area that is equipped with locks or other security devices that permit access only by a cardholder or a person allowed to cultivate the plants. Two or more cardholders who reside in the same dwelling may share one enclosed, locked facility for cultivation;
(14) “Medical cannabis” or “cannabis,” means marijuana as defined in SDCL 22-42-1;
(15) “Medical cannabis dispensary” or “dispensary,” means an entity registered with the South Dakota Department of Health pursuant to SDCL 34-20G that acquires, possesses, stores, delivers, transfers, transports, sells, supplies, or dispenses cannabis, cannabis products, paraphernalia, or related supplies and educational materials to cardholders;
(16) “Medical cannabis establishment,” means a cultivation facility, a cannabis testing facility, a cannabis product manufacturing facility, or a dispensary;
(17) “Medical cannabis establishment agent,” means an owner, officer, board member, employee, or volunteer at a medical cannabis establishment;
(18) “Medical use,” includes the acquisition, administration, cultivation, manufacture, delivery, harvest, possession, preparation, transfer, transportation, or use of cannabis or paraphernalia relating to the administration of cannabis to treat or alleviate a registered qualifying patient's debilitating medical condition or symptom associated with the patient's debilitating medical condition. The term does not include:
a. The cultivation of cannabis by a nonresident cardholder;
b. The cultivation of cannabis by a cardholder who is not designated as being allowed to cultivate on the card holder's registry identification card; or
c. The extraction of resin from cannabis by solvent extraction unless the extraction is done by a cannabis product manufacturing facility;
(19) “Nonresident cardholder,” means a person who:
a. Has been diagnosed with a debilitating medical condition, or is the parent, guardian, conservator, or other person with authority to consent to the medical treatment of a person who has been diagnosed with a debilitating medical condition;
b. Is not a resident of this state or who has been a resident of this state for fewer than forty-five days;
c. Was issued a currently valid registry identification card or its equivalent by another state, district, territory, commonwealth, insular possession of the United States, or country recognized by the United States that allows the person to use cannabis for medical purposes in the jurisdiction of issuance; and
d. Has submitted any documentation required by the department, and has received confirmation of registration;
(20) “Practitioner," means a physician who is licensed with authority to prescribe drugs to humans pursuant to SDCL 36-4 Physician and Surgeons. In relation to a nonresident cardholder, the term means a person who is licensed with authority to prescribe drugs to humans in the state of the patient's residence;
(21) “Qualifying patient,” means a person who has been diagnosed by a practitioner as having a debilitating medical condition;
(22) “Registry identification card,” means a document issued by the department that identifies a person as a registered qualifying patient or registered designated caregiver, or documentation that is deemed a registry identification card pursuant to SDCL 34-20G-29 to SCDL 34-20G-42 inclusive; and
(23) “Written certification,” means a document dated and signed by a practitioner, stating that in the practitioner's professional opinion the patient is likely to receive therapeutic or palliative benefit from the medical use of cannabis to treat or alleviate the patient's debilitating medical condition or symptom associated with the debilitating medical condition. This document shall affirm that it is made in the course of a bona fide practitioner-patient relationship and shall specify the qualifying patient's debilitating medical condition.
Section 2. Operation of Medical Cannabis Establishments in Lincoln County.
Hours of Operation.
(1) The public shall only be permitted during 8 a.m. to 10 p.m. Employees are not restricted access during any time.
Places of Operation.
(1) Pursuant to SDCL 34-20G-55, no medical cannabis establishment may operate within one thousand feet (1000 feet) of a public or private school, including daycare of more than twenty-one (21) children in the establishments.
(2) All medical cannabis establishments in Lincoln County must be in a facility where access to cannabis can be restricted and secured. All medical cannabis establishments must have written procedures detailing appropriate security measures designed to deter theft of cannabis.
(3) All medical cannabis establishments must have written procedures detailing how the establishment will prevent unauthorized entrance to any area containing cannabis.
(4) Any cultivation, harvesting, and/or packaging of cannabis must take place in a secure facility at the address on file with Lincoln County as a medical cannabis establishment. This secure facility may only be accessed by agents of the medical cannabis establishment, emergency personnel, and adults who are at least 21 years of age and who are accompanied by a medical cannabis establishment agent.
(5) A medical cannabis establishment may not produce cannabis concentrates, cannabis extractions or other cannabis products, unless the medical cannabis establishment is also licensed or registered as a cannabis product manufacturer.
(6) A medical cannabis establishment may not share office space with a practitioner.
(7) A medical cannabis establishment may not refer a patient to a practitioner.
(8) No person may consume cannabis on the property of a medical cannabis establishment.
(9) Lincoln County may inspect a medical cannabis facility during business hours to ensure compliance with this ordinance.
Medical cannabis establishment/facility shall meet security requirements.
All medical cannabis establishments shall have the following security system at a minimum:
1) Electronic security recording system, internal and external, which retains recordings for 180 days.
2) Well-lit external parking lot.
3) Locked, fully enclosed, facility.
4) Internal security to track access to building and all medical cannabis.
5) Any additional security to comply with the requirements of 34-20G and the rules of the Department of Health.
Manner of Operation.
(1) Anyone who is a board member, principal officer, agent, volunteer, or employee of a medical cannabis establishment in Lincoln County must have a current and valid background check before working in or with the medical cannabis establishment.
(2) Any medical cannabis establishment in Lincoln County may not employ any person who has been convicted of a disqualifying felony offense.
(3) All employees of a medical cannabis establishment in Lincoln County must be over 21 years old.
(4) No medical cannabis establishment may issue cannabis to anyone who is not a qualifying patient with a current and valid registry identification card issued by the South Dakota Department of Health or a designated caregiver for a qualifying patient, unless licensed by the Department of revenue and pursuant to Amendment A.
Medical cannabis establishment/facility shall have signage:
1) Warning that operating a motor vehicle while under the influence is a criminal act.
2) Stating that re-sale of medical cannabis is prohibited by state law.
3) That medical cannabis may not be used on the premises.
Section 3. Permitting of Medical Cannabis Establishment.
In order to operate as a medical cannabis establishment in Lincoln County, the prospective entity must obtain both a permit from Lincoln County and a current State registration certificate issued by the South Dakota Department of Health. A county license allows for the operations of one of each, Cannabis product manufacturing facility, Cannabis testing facility, Cultivation facility and Cannabis dispensary so long as all the facilities reside at the same location. The license shall be in effect for two-year period a renewal fee shall be paid up to 90 days prior to the expiration of the license.
Permit Application Procedures:
a. A prospective medical cannabis establishment seeking to operate in Lincoln County must first obtain an application from Department of Health and complete registration under the provisions of SDCL 34-20G-55 prior to seeking registration as a medical cannabis establishment from Lincoln County.
b. All permit requests must be submitted, with the application fee, to the Auditor’s Office. A permit decision will be made within 60 days of application.
c. A permit application to operate as a medical cannabis establishment requires:
a. The legal name of the prospective medical cannabis establishment;
b. The location of the prospective medical cannabis establishment;
c. A certification that the location of the prospective medical establishment is not within one-thousand feet (1,000 feet) of a public or private school, including day care facilities with more than 21 children;
d. The name and date of birth of each principle officer and board member of the prospective medical cannabis establishment;
e. A certification that none of the employees of the prospective medical cannabis establishment has been convicted of a disqualifying felony offense;
f. A certification that the employees of the prospective medical cannabis establishment are over the age of 21 years;
g. A current background check for each officer, board member, agent, volunteer or employee associated with or working in the prospective medical cannabis establishment;
h. A description of the type of medical cannabis establishment; for example: whether the establishment will operate as a cultivation facility, a cannabis testing facility, a cannabis product manufacturing facility, or a cannabis dispensary;
i. A copy of the operating documents for the prospective medical cannabis establishment that detail oversight of the establishment and procedures to ensure accurate recordkeeping;
j. A description of appropriate security measures designed to deter and prevent theft of cannabis and unauthorized entry into any area containing cannabis;
k. An application fee of $50,000.00 may be paid in two payments, with half of the fee of the time the application and the remainder in the end of the first year.
Any application for a license as provided in this ordinance shall be made on forms prescribed by the County. The application shall contain information required by the County and necessary to determine the eligibility of the applicant.
Applications submitted to County--Fee—Approval/Disapproval.
Any applicant for a new cannabis establishment/facility, shall submit an application to the County. The applicant shall submit the required fee along with the application. The County may approve the application if the applicant is determined to be suitable to hold the license and the proposed location is suitable. An application shall contain the state applications and approval prior to the application being deemed complete.
The governing body may reject an application for a new medical cannabis establishment/facility if:
(1) The approval of the application permits a person, corporation, or business entity to possess more than one license in the jurisdiction.
(2) The governing body determines the applicant has failed to comply with 34-20G or has a history of violating the State’s rules governing medical cannabis establishments or county ordinances or on zoning regarding medical cannabis establishments.
(3) Failure to pass a background check.
Any application for the reissuance of a cannabis establishment/facility may be approved by the County without a hearing unless, in the past year, the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the medical cannabis establishments control law or the license has been suspended.
Agreement by license applicant granting access to premises and records.
Each application for a license under this title shall include an agreement by the applicant that the applicant's premises, for the purposes of search and seizure laws of the county ordinances where the license is issued, are considered public premises. In addition, the agreement shall state:
(1) The premises and all buildings open to the public shall be open to law enforcement and county officers, for inspection;
(2) All of the applicant's records and books dealing with the sale and ownership of cannabis establishments/facilities are open to the county officers specified inspection of medical cannabis establishments/facilities; and
(3) The application and license issued on the application is a contract between the applicant and the County having jurisdiction entitling the county for the purpose of enforcing ordinances, to inspect the applicant's premises and books at any time.
Hearing required before issuance of license.
No license for a medical cannabis establishment license may be issued to an applicant until a public hearing has been held.
Character requirements for licensees.
Any licensee shall be a person of good moral character, never convicted of a felony, and, if a corporation, the managing officers of the corporation shall meet the same qualifications.
Ownership or lease of premises required of licensees--Ownership of business.
Any medical cannabis establishment licensee under this title shall be the owner or actual lessee of the premises where the business is conducted, and the sole owner of the business operated under the license.
Any medical cannabis establishment license issued in Lincoln County is not transferable to a new owner, business, or other entity. An owner or business which possesses a medical cannabis establishment license may designate a successor which will be given priority in their application for a new license.
Violation as ground for revocation or suspension of license--Multiple licenses.
The County, in compliance with chapter 1-26, may revoke ,suspend or add conditions to any license issued under this ordinance upon proof of violation by the licensee, by the licensee's agents or employees, or by the manager or contractual operators of medical cannabis establishment and their agents or employees operating under a county license, of any of the following:
1) Any provision of this 34-20G;
2) Any rule promulgated pursuant to this ordinance; or
3) Any ordinance or regulation relevant to cannabis establishment/facility control adopted by the political subdivision issuing the license.
For any licensee with multiple licenses within Lincoln County, upon revoke ,suspend or added conditions of any license pursuant to this ordinance, the licensee maybe require to cease operation or comply with added conditions under all medical cannabis establishment licenses held by the licensee for the same premises for the same period as the suspension or revocation. Any violation may be subject to a civil penalty not to exceed $1000.00 dollars.
Applications submitted to County for renewal--Approval if suitable.
Any renewal application for medical cannabis establishments/facility, may be approved if the County considers the applicant suitable to hold the license and the proposed location is suitable. The fee shall be $20,000 dollars.
(1) Nothing in this Ordinance permits any person to:
a. Undertake any task under the influence of cannabis, when doing so would constitute negligence or unprofessional malpractice;
b. Possess cannabis or engage in the medical use of cannabis in any correctional facility;
c. Smoke cannabis on any form of public transportation or in any place open to the public;
d. Operate, navigate or be in actual physical control of any motor vehicle, aircraft, train, or motorboat while under the influence of cannabis.
(2) Nothing in this Ordinance requires an employer to allow ingestion or use of cannabis in the workplace or to allow an employee to work while the employee is under the influence of cannabis.
(3) Nothing in this Ordinance requires a person or establishment to allow a guest, client, customer, or other visitor to smoke or use cannabis on or in that property.
(4) Nothing in this ordinance prohibits an employer from disciplining an employee for ingesting cannabis in the workplace or disciplining and employee for working while under the influence of cannabis.
Use or possession of marijuana in public.
(5) No person shall use or consume marijuana in any public place or possess any marijuana or marijuana product in any package, bottle, glass, or other container which is not sealed as required by law while in a public place. For purposes of this section, the term "public place" shall mean any street, alley, sidewalk, or parking lot, commonly and customarily open to or used by the general public and any public building or structure open to or used by the general public.
(6) No person shall use or consume marijuana on any private property without the consent of the owner of such property. This section does not apply to premises duly licensed under South Dakota Codified Laws or the South Dakota Constitutional Amendment A.
(7) It is a Class 2 misdemeanor for any person occupying a motor vehicle located upon a public highway or the right-of-way of a public highway to have a package or any receptacle containing a marijuana in that person's possession unless the seal of the original package remains unbroken, or the marijuana is so removed from the passenger area of the motor vehicle that no occupant of the motor vehicle has access to it.
(8) It is a Class 2 misdemeanor for any person have a package or any receptacle containing marijuana in that person's possession unless labeling of the package identifies clearly the marijuana has been obtained from a legal dispensary or a certificate from a physician stating the person is authorized for cultivation marijuana at home or designated caregiver for a cardholder who has a certificate from a physician stating they may cultivate marijuana at home.
Section 5. Civil Penalties for Violation of this Ordinance.
Any person or entity that violates any provision of this Ordinance is subject to a civil penalty of up to 100.00 dollars.
Dated the 29th day of July 2021 at Canton, South Dakota.
Chair, Lincoln County Commission
Lincoln County Auditor