HomeMy WebLinkAboutCalifornia, State of - Dept of Attorney General Cannabis Administrative Prosecutor Program (CAPP) MOU August 2023 - August 2024 CANNABIS ADMINISTRATIVE PROSECUTOR PROGRAM
(CAPP)
ATTO
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OAP
MEMORANDUM OF UNDERSTANDING
August 2023 — August 2024
Table of Contents
I. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I1. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. Goals and Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
IV. Management and Supervision of the CAPP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
V. Overview of Enforcement Process and Roles of the Parties . . . . . . . . . . . . . . . . . . . . . . . .6
VI. Annual Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
VII. Facilities, Equipment and Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
VIII. Administrative Fines and Cost Recovery Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
IX. Asset Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
X. Term of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
XI. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
XII. Instructions for Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
XIII. Cost Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
XIV. Liability, Indemnification, and Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
XV. Press Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
XVI. Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 11
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Cannabis Administrative Prosecutor Program
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding (MOU) is made and entered into this day of August,
2023, by and between the City of Fresno (City) and the Office of the Attorney General (OAG), a
department of the State of California. The City and the OAG are collectively referred to herein as
the "Parties," and individually as a "Party." This MOU is made by the Parties with reference to
the following Recitals:
A. On January 24, 2019, the City ordinance known as the Cannabis Retail Business and
Commercial Cannabis Business Ordinance became effective, codified as Fresno Municipal Code
(FMC), Chapter 9, Article 33, Sections 9-3301, et. seq. (the "Ordinance"), attached hereto as
Exhibit A and incorporated herein by reference. The Ordinance governs administrative
enforcement against illegal commercial cannabis activity within the jurisdictional boundaries of
the City. In addition, FMC section 15-2739 governs Adult Use and Medicinal Cannabis Retail
Business and Commercial Cannabis Business, attached as Exhibit B.
B. The Ordinance authorizes the City Attorney to enforce the standards set forth in FMC
§9-3301, et. seq. Pursuant to the Ordinance, the term "enforcement officers" includes any city
employee vested with authority to enforce the Code, which also includes any employee or person
under contract with the City Attorney appointed to investigate and/or prosecute violations of this
Code. These powers include the power to inspect public and private property and use whatever
judicial and administrative remedies are available under the Code or applicable laws. (FMC §1-
302)
1. PURPOSE
The Parties share the common goals to reduce and eliminate illegal commercial cannabis
activity within the City and to mitigate the environmental, social, and economic impacts
of these illegal activities. These common goals can be served by entering into an
agreement that will integrate the resources of the OAG with the powers that the City has
to undertake speedy and efficient enforcement actions against illegal land uses that
constitute public nuisances.
The purpose of this MOU is to set forth the responsibilities of the Parties, as they relate to
the Cannabis Administrative Prosecutor Program (CAPP). Working in conjunction with
one another, the Parties will endeavor to effectively enforce the laws of the State of
California including the Government Code, Business and Professions Code, Health and
Safety Code, and applicable local ordinances related to illegal commercial cannabis
activity. Use of the CAPP is intended to ensure well-rounded and coordinated
administrative and civil enforcement efforts. The Parties share the same purpose of
reducing illegal commercial cannabis activity in their respective areas of responsibility by
providing a highly trained and specialized enforcement team.
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II. PARTIES
A. OAG - The CAPP will be operated by the Cannabis Control Section of the OAG.
The OAG shall establish policies and procedures for the operation of the CAPP, provide
direction and oversight to the CAPP, and ensure cooperation by and between the Parties.
B. City - The local jurisdiction, in accordance with the provisions of this agreement
authorizes the OAG to work with or on behalf of the City for the purpose of utilizing the
City's administrative enforcement procedures to reduce and eliminate illegal commercial
cannabis activities. The City makes a commitment to provide necessary personnel to
implement the CAPP during the period this MOU is in effect, including the City
Attorney's Office Division of Code Enforcement, Police Department, Fire Department,
Finance/Business Tax Department, and any other department deemed necessary.
III. GOALS AND OBJECTIVES
The CAPP will promote and implement coordinated efforts towards taking administrative
enforcement action against illegal commercial cannabis activity. The CAPP will
encourage full cooperation between local and state code compliance, enforcement, and
prosecutorial agencies to do the following:
A. Authorize OAG staff to act through and on behalf of the City. The City in
executing this agreement authorizes OAG staff assigned to implement the CAPP to work
with or act on behalf of the City for the limited purpose of managing enforcement actions
against illegal cannabis operators and prosecuting such cases before the City's
independent administrative hearing officer.
B. Duty to Cooperate with OAG and the CAPP. City understands that it is
conducting enforcement activities authorized by a City Ordinance and that the CAPP is
ultimately responsible to oversee any appeals hearing and/or abatement. Therefore, City
enforcement staff shall cooperate with the CAPP in its enforcement efforts. Such
cooperation includes but is not limited to:
1. Consistent use of any template documents agreed upon by the Parties (e.g.,
notices of violation, orders to abate, orders to show cause, proposed orders,
voluntary settlement agreements, abatement warrants, and documents for
recording abatement liens);
2. Making City personnel available to testify at appeal hearings,
administrative citation hearings, lien hearings, and/or to obtain
inspection/abatement warrants;
3. Providing copies of case records to OAG staff upon request;
4. Preparing and executing necessary documents, such as warrant affidavits,
upon request by OAG staff; and
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5. Collecting and providing parcel specific information regarding properties
upon which suspected illegal commercial cannabis activity is occurring. This
includes, but is not limited to, information about the status of building permits,
well permits, grading permits, any other required city permits, GIS data, and any
other information that would be useful in determining whether activities and
conditions on a given parcel constitute violations of local and state law applicable
to illegal cannabis activity.
Failure to timely cooperate with OAG staff may result in discontinuation of enforcement
proceedings and/or may preclude the OAG from pursuing costs incurred through the use
of the City's administrative enforcement procedures.
IV. MANAGEMENT AND SUPERVISION OF THE CAPP
A. Management
The management and supervision of the CAPP operations and resources subject
to the control of the OAG will be the responsibility of the Senior Assistant Attorney
General (SAAG) and a Supervising Deputy Attorney General (SDAG) of the Cannabis
Control Section of the OAG. In addition to operational responsibility, the SAAG,
SDAG, or a designee, will act as liaisons between the OAG and the City, and other
federal, state, and local agencies, and prosecutors. Although not intended as an exclusive
list of duties, the SAAG and SDAG shall be responsible for the following in connection
with CAPP:
1. Supervise and direct all OAG personnel assigned to implement the CAPP.
2. Coordinate requests for assistance from the City for the CAPP.
B. CAPP Prosecutors
1. Deputy Attorneys General (DAGs) will be assigned as prosecutors to the
CAPP and will be supervised by the SAAG and SDAG. The City may not direct,
supervise, or manage,the work of the DAG.
2. DAGs shall have the following authority, in accordance with the
expectations, policies, and procedures of the OAG, in prosecuting administrative
enforcement actions against illegal commercial cannabis operations:
a. The discretion to determine which illegal commercial cannabis
operations shall be the subject of an administrative citation;
b. The discretion to decide whether the case will be initiated through
the notice of violation and citation process, through an order to show
cause proceeding, summary abatement proceedings, or other procedures to
the extent such alternatives are authorized under applicable local law;
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C. The discretion to negotiate voluntary settlement agreements,
reduce fines, and enter into stipulations on behalf of the City for entry of
administrative orders to be submitted to the City's independent
administrative hearing officer;
d. The discretion to voluntarily dismiss a case, where in the opinion
of the assigned DAG, there is a lack of evidence or no reasonable cause to
continue with the case;
e. The discretion to request, on behalf of the City, that unpaid costs of
enforcement be specially assessed against a parcel that is the subject of an
enforcement action in accordance with Government Code Sections38773.1
and 38773.5 and applicable local law;
3. OAG DAGs assigned to implement the CAPP will comply with OAG
protocols for parallel proceedings and ensure that administrative enforcement
actions undertaken through the CAPP do not interrupt criminal investigations and
do not interfere with investigations or planned criminal enforcement actions.
OAG staff will refrain from initiating enforcement actions against any particular
parcel, owner, and/or occupant, at the request of local law enforcement.
C. City Regulatory Enforcement Staff
1. Notwithstanding the Duty to Cooperate set forth in section III.B., above,
City employees assigned to implement the CAPP will not be subject to the
direction, supervision, or management of the OAG.
2. Designated City departments and staff will work with OAG staff assigned
to implement the CAPP to determine what code violations exist at illegal
commercial cannabis sites, what actions are required for complete abatement of
the identified code violations, and what other matters must be addressed to bring
cited sites into compliance with local and state laws that are administered by City
departments.
3. Where City staff incurs costs associated with the abatement of code
violations which exist at illegal commercial cannabis sites, City staff will log and
tally those costs for the purpose of cost recovery in accordance with section XIII,
below.
D. City Police Department(PD)
1. The OAG and City staff working under the CAPP on proposed
administrative enforcement actions will inquire with the PD to ensure that
administrative enforcement actions do not interfere with existing criminal
investigations or planned criminal enforcement actions. Where informed of
possible interference with criminal enforcement activity, OAG and City staff will
not initiate enforcement actions against any particular parcel, owner, and/or
occupant.
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2. PD incurs costs, including administrative costs in causing the abatement of
unlawful cannabis activity pursuant to a nuisance abatement order, the PD may be
entitled to recovery of such costs. PD staff shall log and tally those costs for the
purpose of cost recovery in accordance with section XIII, below.
V. OVERVIEW OF ENFORCEMENT PROCESS AND ROLES OF THE PARTIES
Nothing in this agreement shall limit the authority of the City to engage in enforcement
actions to ensure compliance with local laws through any means available under state and
local law. However, enforcement actions undertaken through the CAPP on behalf of the
City utilizing OAG staff and resources will generally occur as follows:
A. Investigation. A property upon which illegal commercial cannabis activity is
occurring is identified and evidence of illegal activity is obtained.
B. The CAPP assigned DAG in cooperation with City staff, the Sheriffs Office,
Police Department, and any participating state agency partners, will determine whether
the parcel, owner, and/or occupant should be the subject of administrative action in
accordance with this MOU.
C. Preparation of Forms. Following the determination that an administrative case
should be initiated, the forms agreed upon by the parties shall be completed by assigned
City staff and prepared for service.
D. Service of Notice. Assigned City staff shall cause notices of violation, citations,
or orders to show cause to be posted and served in accordance with applicable law.
E. Voluntary Compliance. The property owner will be provided with an opportunity
to voluntarily abate and enter into a stipulated administrative order or settlement
agreement resolving the case.
F. Default or Hearing. Where a notice of violation and citation has been served and
the property owner is non-compliant and does not request a hearing, a default order
containing a provision for an abatement warrant will be requested. In the event that the
property owner seeks an appeal, or the administrative action is initiated through an order
to show cause, then the assigned OAG DAG and staff will present the case before the
independent administrative hearing officer or the Superior Court of California, County of
Fresno if necessary, and will seek imposition of fines and an order to abate.
G. Abatement Warrant. Immediately following the hearing and service of the order,
either OAG staff or city staff assigned to implement the CAPP will seek an abatement
warrant, and ensure that all applicable state and local laws are followed prior to causing
the recordation of an abatement lien.
H. Cost Recovery. Costs of enforcement will be documented and tallied and, if the
costs of enforcement are not voluntarily paid, the assigned OAG DAG will record the
costs against the parcel as a property tax lien in accordance with applicable provisions of
the Government Code.
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VI. ANNUAL REPORT
One year following commencement of the CAPP, and on a yearly basis thereafter, OAG
staff in coordination with City staff, will produce a report to the City Council providing
statistical information and summarizing enforcement actions undertaken on behalf of the
City through the CAPP.
VII. FACILITIES, EQUIPMENT AND PROPERTY
Each party shall be responsible for providing its own employees and staff with any and
all property, equipment, furniture, and furnishings of whatever kind or description,
necessary for carrying out its responsibilities.
VIII. ADMINISTRATIVE FINES AND COST RECOVERY FUND
A. Administrative fines assessed against unlicensed commercial cannabis operators
as a consequence of CAPP actions shall be deposited into a fund maintained by the City
entitled the CAPP Cost Recovery Fund.
B. Monies retained in the CAPP Cost Recovery Fund shall be used in accordance
with section XIII.C., below, to only reimburse the Parties for unrecoverable enforcement
costs, if any.
C. The CAPP Cost Recovery Fund shall be maintained until termination of this
MOU or until the last abatement lien recorded as a consequence of a CAPP action is
released, whichever is later. Thereafter, any sums remaining in the CAPP Cost Recovery
Fund may be used in any manner the City deems appropriate.
IX. ASSET FORFEITURE
A. Proceeds derived from asset forfeiture as a result of the CAPP operations, whether
under state or federal law, will be shared among the Parties as set forth herein. All
forfeiture procedures and sharing will comply with the appropriate provisions of state and
federal law, as well as the policies of the Parties. Any modification to the asset forfeiture
provisions of this MOU must be set forth in writing and be approved by the Parties.
B. Use of Asset Forfeiture Funds for CAPP Operations.
Except as otherwise required by applicable law, the asset forfeiture funds
generated by the CAPP operations shall be deposited into the CAPP Cost Recovery Fund
as set forth in section VIII, above. The use of asset forfeiture funds for the CAPP
operations shall be in strict accordance with the state statutes and regulations governing
the use of such funds. No Party entitled to a share of those funds pursuant to this MOU
shall have a right to distribution of its share of those funds unless approved by the Parties
as provided herein. The balance of asset forfeiture funds shall be used by the City as
permitted by state laws.
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C. Maintenance of Asset Forfeiture Accounts
The OAG shall maintain a log of all assets seized as a result of CAPP actions. The
City is the fiduciary agency and shall be responsible for receiving and administering all
asset forfeiture funds including the receipt and disbursement of funds generated by asset
forfeiture, and all funds generated by CAPP activity shall pass through the City. The
SAAG or SDAG overseeing the CAPP shall be notified of all asset forfeiture funds
received by the City when they are received, and disbursements shall be made in
accordance with applicable asset forfeiture state laws. Monies shall be held in a manner
and fashion in accordance with applicable federal and state laws. Interest earned on all
funds, if any, shall be deposited into the CAPP Cost Recovery Fund.
X. TERM OF AGREEMENT
A. The term of this agreement will begin upon the final execution of all signatures to
this MOU and continue for one year. Every term thereafter will be a one-year term or
until the MOU is terminated by one of the Parties.
B. The term of this MOU may be amended by request of one Party with the
agreement of the other Party in writing.
C. The City may withdraw from the MOU at any time by providing the OAG written
notice to the SHAG, containing the effective date of withdrawal. The OAG may
withdraw from the MOU at any time by providing the City written notice to City contact,
containing the effective date of the withdrawal.
D. Budget Contingency Clause: It is mutually agreed that if the Budget Act of the
current fiscal year and/or any subsequent fiscal years covered under this MOU does not
appropriate sufficient funds for the CAPP, this MOU shall be of no further force and
effect. In this event, the OAG shall have no liability to pay any funds or provide any
services whatsoever to the City or to furnish any other consideration under this MOU and
City shall not be obligated to perform any provisions of this MOU.
XI. COMPENSATION OF PERSONNEL
The Parties shall remain responsible for establishing the salaries and benefits including,
but not limited to, overtime and Worker's Compensation Insurance, and for
compensating their assigned personnel.
The CAPP is not an independent entity nor an employer. Any employee of the City or
contractor working for the City who performs tasks for, or in support of, the CAPP shall
be compensated in accordance with the terms of their employment with or in accordance
with the terms of their employment or contract with the City. Any employee of the OAG
or contractor working for the OAG who performs tasks for, or in support of, the CAPP,
shall be compensated in accordance with the terms of their employment or contract with
the OAG.
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XII. INSTRUCTIONS FOR REIMBURSEMENT
A. City staff and PD shall be responsible for logging and documenting all costs
incurred in causing the abatement of unlawful commercial cannabis activities, including,
but not limited to, administrative costs. Responsible City staff shall complete a
memorandum of costs verifying the investigation and prosecution costs incurred for each
case to be used to support an administrative order finding. The memorandum of costs
shall identify the assessor parcel number associated with each case, the identity and
hourly rate of officers and staff that worked on each case, and description of the tasks
undertaken to achieve the abatement of the nuisance.
B. OAG staff assigned to the CAPP shall use the OAG's case management system
for logging time incurred in each case, and shall ensure that all costs associated with the
time entries are included in requests for final administrative orders. Work undertaken by
the SDAG and/or DAGs will be billed at a rate of $220 per hour; work undertaken by
OAG legal analysts or paralegals shall be billed at a rate of $205 per hour. DAGs
assigned to CAPP shall prepare declarations of costs to support an administrative order.
C. Any and all records pertaining to the enforcement costs incurred through the
CAPP shall be maintained at a location designated by the Parties, and readily available to
the Parties. In addition, all records and reports generated by either Party in connection
with the CAPP shall be maintained for a period of at least four (4) years following
termination of this MOU and shall continue to be available to the parties.
XIII. COST RECOVERY
A. Each Party is responsible for funding its own activities in implementing and
carrying out the CAPP and each Party shall be entitled to recover enforcement and
prosecution costs incurred in undertaking enforcement actions through the CAPP in
accordance with State and local law governing nuisance abatement.
B. In no event shall either party to this MOU have the authority to unilaterally reduce
or eliminate the obligation a property owner has under a settlement agreement to pay
enforcement costs incurred by either the City or the OAG.
C. In circumstances where the costs of abatement exceed the actual value of a
subject property and funds recoverable through a tax lien sale are insufficient to cover all
enforcement and prosecution costs of the CAPP operation, or in other circumstances
where costs cannot be recovered through abatement liens, then the CAPP Cost Recovery
Fund shall be used to reimburse the Parties for their proportionate share of expended
enforcement costs.
D. In the event that costs of enforcement cannot be recovered from violators or paid
from the CAPP Cost Recovery Fund, each Party shall bear their own unrecoverable costs.
In no event shall either party be responsible for reimbursing the other for unrecovered
costs.
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XIV. LIABILITY, INDEMNIFICATION AND RESPONSIBILITY
A. For the purpose of indemnification, each Party shall be responsible for the acts,
errors or omissions of its assigned officers, agents or employees, and shall incur any
liabilities arising out of the services and activities of those officers, agents or employees
while participating in the CAPP. Personnel assigned to implement the CAPP shall be
deemed to be continuing under the employment of their respective agencies, and, as to
peace officers, shall continue to have the same powers, duties, privileges, responsibilities
and immunities as are conferred upon them as peace officers in their own jurisdictions.
B. No Party shall be responsible for the acts, errors, or omissions of the other Parry's
officers, agents or employees, nor incur any liabilities arising out of the services and
activities of the other Party's officers, agents or employees.
C. In the event of a claim (Underlying Claim) by a third party against one or both
Parties based on the CAPP activities, the Parties agree to defer any claims against each
other and their respective officers, agents or employees until the Underlying Claim is
settled or otherwise determined, unless the statutory time restrictions are about to expire.
Thereafter, any claims between the Parties shall be resolved in accordance with law.
XV. PRESS POLICY
The Press Policy of the CAPP shall follow the OAG's Department Operations Manual.
A Party that wants to include media on the scene of an ongoing enforcement operation
shall obtain approval from the other Party prior to inviting media.
XVI. SIGNATURES
The undersigned represents that the undersigned has the authority to execute this
agreement on behalf of the Party that they represent. The Parties, evidenced by the
signatures of their authorized representatives hereto, agree that this MOU shall be
effective upon approval of both Parties, and shall remain in full force and effect until
either Party withdraws from the CAPP as provided herein. It is further acknowledged by
both Parties that certain portions of this agreement may require amendments during the
term of the MOU. Such amendments will become effective when signed by the Parties'
authorized representatives.
If any provision of this MOU is held invalid or unconstitutional, such decision shall have
no effect on the validity of the remaining provisions of the MOU and such remaining
provisions shall continue to remain in full force and effect.
AGREED HERETO BY THE PARTIES BASED ON THE SIGNATURES OF THEIR
AUTHORIZED REPRESENTATIVES THAT APPEAR BELOW:
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OFFICE OF THE ATTORNEY GENERAL
DATE: Jam '
ROB hONTA
Attorney General of California
CITY OF FRESNO
A California municipal corporation
DATE: 1 a" 4�a"
GEOR ANNE A. WHITE
City Manager
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
DATE: Z 5 2`Z-�
ANDREW JANZ
ATTEST:
TODD STERMER, CMC
City Clerk
DATE: g-Za-ZOZ-3
Dep ty
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