082311 board of supervisors - draft medical marijuana cultivation ordinance

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    patients and primary caregivers who collectively or cooperatively cultivate marijuana for

    medical purposes with a limited defense to certain specified State criminal statutes.

    (d) Health and Safety Code section 11362.83 expressly allows cities and counties to adopt and

    enforce ordinances that are consistent with Senate Bill 420.

    (e) The Federal Controlled Substances Act, 21 U.S.C. 801 et seq., classifies marijuana as a

    Schedule I Drug, which is defined as a drug or other substance that has a high potential for

    abuse, that has no currently accepted medical use in treatment in the United States, and that has

    not been accepted as safe for use under medical supervision. The Federal Controlled Substances

    Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute ordispense, or possess with intent to manufacture, distribute or dispense, marijuana. The Federal

    Controlled Substances Act contains no exemption for the cultivation, manufacture, distribution,

    dispensation, or possession of marijuana for medical purposes.

    (f) The Countys geographic and climatic conditions, along with the sparse population in many

    areas of the County provide conditions that are favorable to outdoor marijuana cultivation. The

    federal Drug Enforcement Administration reports that various types of marijuana plants under

    various planting conditions may yield averages of 236 grams, or about one-half pound, to 846

    grams, or nearly two pounds. The street value of a single Marijuana plant is substantial

    Ounce prices for domestically produced high-grade marijuana sold illegally within Northern

    California are in the $300 range. A single marijuana plant cultivated within the County can thus

    yield between $2,000 and $9,000 in salable marijuana.

    (g) Proposition 215 and Senate Bill 420 primarily address the criminal law, providing qualifying

    patients and primary caregivers with limited immunity from state criminal prosecution under

    certain identified statutes. Neither Proposition 215 nor Senate Bill 420, nor the Attorney

    Generals August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for

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    (l) As recognized by the Attorney Generals August 2008 Guidelines for the Security and Non-

    Diversion of Marijuana Grown for Medical Use, the cultivation or other concentration of

    marijuana in any location or premises without adequate security increases the risk that

    surrounding homes or businesses may be negatively impacted by nuisance activity such as

    loitering or crime.

    (m) It is the purpose and intent of this Article to implement State law by providing a means for

    regulating the cultivation of medical marijuana in a manner that is consistent with State law and

    which balances the needs of medical patients and their caregivers and promotes the health

    safety, and welfare of the residents and businesses within the unincorporated territory of the

    County of Lake. This Article is intended to be consistent with Proposition 215 and Senate Bill420, and towards that end, is not intended to prohibit persons from individually, collectively, or

    cooperatively exercising any right otherwise granted by State law. Rather, the intent and purpose

    of this Article is to establish reasonable regulations upon the manner in which marijuana may be

    cultivated, including restrictions on the amount of marijuana that may be individually

    collectively, or cooperatively cultivated in any location or premises, in order to protect the public

    health, safety, welfare and environment in Lake County, and that is in conformance with the

    provisions of California Health and Safety Code Section 11362.5 through 11362.83.

    (n) The limited right of qualified patients and their primary caregivers under State law to cultivate

    marijuana plants for medical purposes does not confer the right to create or maintain a public

    nuisance. By adopting the regulations contained in this Article, the County will achieve a

    significant reduction in the aforementioned harms caused or threatened by the unregulated

    cultivation of marijuana in the unincorporated area of Lake County.

    (o) Nothing in this Article shall be construed to allow the use of marijuana for non-medical

    purposes, or allow any activity relating to the cultivation, distribution, or consumption of

    marijuana that is otherwise illegal under State or federal law. No provision of this Article shall

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    be deemed a defense or immunity to any action brought against any person by the Lake County

    District Attorney, the Attorney General of State of California, or the United States of America.

    72A.2 Intent: It is the intent of the Board of Supervisors to regulate the cultivation of marijuana for

    medical purposes, including but not limited to regulations as to location of the cultivation, number of plants

    and the use of fencing or other screening and security structures, to accommodate the needs of qualified

    patients and/or their caregivers, and in furtherance of the public necessity, convenience and general welfare

    It is also the intent of the Board of Supervisors that nothing in this Article shall be construed to allow

    persons to engage in conduct that endangers others or causes a public nuisance or to allow the use or

    diversion of marijuana for non-medical purposes.

    72A.3 Applicability: The provisions of this Article shall be applicable to all persons and businesses

    described herein whether the activities described herein were established before or after the effective

    date of this Article.

    72A.4 Definitions:

    (a) Cultivation: The planting, growing, harvesting, drying, or processing of marijuana plants

    or any part thereof.

    (b) Fence: means a wall or a barrier connected by boards, masonry, rails, panels, wire or any

    other materials approved by the Community Development Department for the purpose of

    enclosing space or separating parcels of land. The term fence does not include retaining

    walls, plastic, tarp, bamboo coverings, corrugated metal, or other materials not designed

    or manufactured for use as a fence.

    (c) Indoors: means within a fully enclosed and secure structure that complies with the

    California Building Standards Code (Title 24 California Code of Regulations), as adopted

    by the County of Lake, that has a complete roof enclosure supported by connecting walls

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    extending from the ground to the roof, and a foundation, slab, or equivalent base to which

    the floor is securely attached. The structure must be secure against unauthorized entry,

    accessible only through one or more lockable doors, and constructed of solid materials

    that cannot easily be broken through, such as 2" 4" or thicker studs overlain with 3/8"

    or thicker plywood or equivalent materials. Plastic sheeting, regardless of gauge, or

    similar products do not satisfy this requirement.

    (d) Marijuana: shall have the same meaning as that set forth in California Health and Safety

    Code Section 11018.

    (e) Medical Marijuana: Medical marijuana that has been recommended by a licensed physicianin strict accordance with California Health and Safety Code Sections 11362.5 through

    Section [1362.83, inclusive, commonly referred to as the Compassionate Use Act and the

    Medical Marijuana Program.

    (f) Medical Marijuana Dispensary, or Dispensary: As defined in Section 72.4 (a) of this

    Chapter.

    (g) Primary Caregiver: Shall have the same definition as California Health and Safety Code

    Section 11362.7 (d).

    (h) Qualified Patient: Shall have the same definition as California Health and Safety Code

    Section 11362.7 (f).

    (i) Premises: Includes the actual building, as well as accessory structures, parking areas and

    other on-site improvements.

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    72A.5 Uses Permitted:

    1. Cultivation of medical marijuana by a qualified patient or primary caregiver, not to

    exceed a total of six (6) mature plants or twelve (12) immature plants is an allowed use on

    parcels within the R1, SR, RR, RL, A, APZ and TPZ zoning districts. If both

    mature and immature marijuana plants are cultivated on the premises, there shall be no more than

    six (6) mature marijuana plants and no more than twelve (12) total marijuana plants. Cultivation

    authorized by this Section is subject to the following criteria:

    (a) Outdoor cultivation shall be completely screened from public view and the views of

    adjacent parcels with a fence, and no medical marijuana shall be cultivated or otherwise

    placed within 15 feet of any property line, as measured from the plant canopies. Thefence must include a locking gate which shall be kept locked at all times when the

    qualified patient or caregiver is not in the immediate area. Fences and gates shall comply

    with the height limits specified by Section 42.11 of the Zoning Ordinance, and the

    definition of fence provided in this Article.

    (b) Outdoor cultivation shall not be conducted within 500 feet of any public or private

    elementary, middle or high school, developed park containing playground equipment

    drug or alcohol rehabilitation facility, day care facility, church or youth-oriented facility

    such as any establishment that advertises in a manner that identifies the establishment as

    catering to or providing services primarily intended for minors, or the individuals who

    regularly patronize, congregate or assemble at the establishment are predominately

    minors.

    (c) The cultivation is an accessory use to an existing, permitted residential use of the

    property, and the person or persons engaged in the cultivation must reside at the site.

    Cultivation on vacant properties is prohibited.

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    (d) The person(s) engaged in the medical marijuana cultivation shall be a verifiable

    qualified patient or primary caregiver as defined by the California Health and Safety

    Code.

    (e) A copy of a current and valid physician recommendation or state-issued medical

    marijuana identification card shall be displayed within the cultivation area, or on the

    exterior of the building used for an indoor cultivation, in a manner that allows law

    enforcement officials to easily see the card without having to access any building.

    (f) If the premises are rented, written approval shall be obtained from the property owner

    that authorizes the tenant or lessee to cultivate medical marijuana at the site, and a copyof the written approval shall be maintained by the tenant or lessee. Written approvals

    shall be renewed annually.

    (g) If Medical Marijuana is cultivated inside a residence, the following additional criteria

    shall apply:

    1. The kitchen, bathrooms, and master bedroom shall be maintained for their

    intended use and not be used for Medical Marijuana cultivation.

    2. The area used for cultivation shall not occupy more than 100 square feet of the

    residence.

    3. Indoor lighting shall not exceed 1,200 watts and shall conform to all applicable

    codes.

    4. Indoor cultivation area(s) shall be ventilated for odor control, and shall not create

    a humidity or mold problem.

    (h) If minors reside on the site, cultivation shall not be conducted within the residence

    Minors shall not be involved with assisting in the cultivation.

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    (i) Medical Marijuana cultivation shall not adversely affect the health or safety of nearby

    residents by creating dust, glare, heat, noise, odor, smoke, traffic, or other impacts, or be

    hazardous due to use or storage of materials, products or wastes.

    (j) Nothing in this Section shall be construed as a limitation on the County's authority to

    abate any nuisance which may exist from the planting, growing, harvesting, drying

    processing or storage of marijuana plants or any part thereof from any location, indoor or

    outdoor, including from within a fully enclosed and secure building.

    2. Cultivation of medical marijuana by more than one (1) but not to exceed three (3)

    qualified patients or a primary caregiver is an allowed use on parcels within the SR, RRRL, A, APZ and TPZ zoning districts that are a minimum of one (1) acre and are

    located outside of any Community Growth Boundary, provided that cultivation does not exceed

    six (6) mature plants or twelve (12) immature plants per qualified patient and a total of 18 mature

    or 36 immature plants on the site. If both mature and immature marijuana plants are cultivated

    on the premises, there shall be no more than six (6) mature marijuana plants and no more than

    twelve (12) total marijuana plants per qualifying patent and in no case shall the total number

    exceed 36 plants. Cultivation authorized by this Section is subject to the criteria specified in

    Section 72A.5 1(b) through (j). Outdoor cultivation authorized by this Section shall be subject to

    setbacks of thirty (30) feet from property lines and 100 feet from any off-site residence.

    72A.6 Uses Permitted Subject to Approval of a Minor Use Permit: Collective or Cooperative

    Medical Marijuana cultivation sites exceeding the cultivation limits specified in Section 72A.5

    but not more than 36 mature or 72 immature plants shall be subject to approval of a Minor Use

    Permit in each case. If both mature and immature marijuana plants are cultivated on the

    premises, there shall be no more than 36 mature marijuana plants and no more than 72 total

    marijuana plants. The following minimum application and siting requirements and operation

    standards shall be met:

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    (g) A detailed site plan shall be submitted that includes the following information:

    1. The location, approximate dimensions and use for all buildings and

    structures on the parcel, and location and dimensions of parking area.

    2. Location and dimensions of all outdoor growing, processing and storage areas.

    3. Location of all residential structures on adjoining parcels, including

    approximate distance from the proposed cultivation and processing areas to said

    residences.

    4. Location of fencing, screening, and lockable gate(s), and height and type of

    materials proposed.

    5. Location of all public rights-of-way and approximate distance from the

    proposed cultivation and processing areas.6. Any other applicable information listed in Section 55.2 of the Lake County

    Zoning Ordinance.

    7. Any other information that is deemed necessary by the Community

    Development Director in order to complete the application processing.

    (h) The applicant shall provide written verification that each individual participating in the

    cultivation is a qualified patient or primary caregiver, by any of the following methods:

    1. A copy of a valid government-issued medical marijuana identification card for the

    applicant and each additional participant; or

    2. A copy of a written recommendation from a physician for the applicant and each

    additional participant: or

    3. Written documentation that the applicant or each additional participant is a

    primary caregiver by providing the name and verification of status of each

    qualified patient for whom the primary caregiver is cultivating medical

    marijuana, and a statement from each qualified patient identifying the

    applicant or additional participant as their primary caregiver.

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    (i) If the cultivation will in whole or in part supply members of a cooperative or

    collective through a Medical Marijuana Dispensary, each member who will be

    participating in Medical Marijuana cultivation at the site shall submit verification that

    each is a qualified patient or primary caregiver as defined and is a current member of the

    collective or cooperative associated with the Medical Marijuana Dispensary.

    (j) Prior to the minor use permit application being deemed complete for processing, the

    owner and/or operator of the proposed collective or cooperative medical marijuana

    cultivation site and any employees, volunteers or contractors must pass a criminal history

    background investigation performed by the Lake County Sheriff, at the applicants

    expense, and must provide personal affidavits. Any applicant, his or her agent oremployees, or any person exercising managerial authority of a cultivation site on behalf

    of the applicant shall not have been convicted of a felony, or of a misdemeanor involving

    moral turpitude, or engaged in misconduct related to the qualifications, functions or

    duties of a permittee. A conviction within the meaning of this section means a plea or

    verdict of guilty or a conviction following a plea of nolo contendere

    (k) Applications for minor use permits for Collective or Cooperative Medical Marijuana

    cultivation sites shall include an Operation Plan that specifies the following:

    1. Written project description that includes detailed information including the ful

    name and address of the operator, the property owners name and address.

    2. A description of how the cultivation operations will be conducted, including

    the hours and days of operation proposed.

    3. The number of members within the collective or cooperative associated with

    the cultivation site, and the number of employees that will be involved in the

    cultivation, processing, storage and distribution.

    4. A detailed floor plan, drawn to scale, for any building(s) to be used as part of the

    cultivation operation.

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    5. Description of measures taken to minimize or offset energy use from any proposed

    indoor cultivation and/or drying of Medical Marijuana.

    6. A list of fertilizers and any chemicals and in what amounts they will be used and

    stored on site.

    7. The on-site security systems and methods proposed, including measures for safe

    storage of medical marijuana, security lighting, fences and other security measures

    proposed to be used.

    8. Proof of eligibility as a collective or cooperative, such as articles of incorporation,

    not for profit status, financial and general membership information.

    9. Written evidence of ownership or authorization for use of the proposed site.

    72A.7 General Performance and Operational Standards for Collective or Cooperative

    Medical Marijuana cultivationsites:

    (a) Annual compliance monitoring shall be conducted by the Lake County Sheriffs Office

    and the Community Development Department, at the permit holders expense. Prior to

    operation of the cultivation site, the permit holder shall enter into a Compliance

    Monitoring Inspection Agreement with the Sheriffs Office Community Development

    Department and shall pay for an initial inspection of the premises. The Agreement shall

    provide for recovery of costs incurred by the Sheriffs Office County based on the

    weighted hourly rate(s) of the staff assigned to conduct said inspections. The permi

    holder shall maintain the following records and shall make said records available to the

    Lake County Sheriffs Office upon request:

    1. Proof of not-for-profit status. Any compensation for the permit holders time shall

    be consistent with Federal Income Tax laws for reasonable

    compensation. No medical marijuana collective or cooperative cultivation site

    shall be operated for profit. The operator may receive compensation for actua

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    expenses, including reasonable compensation for services provided, or for

    payment of out-of-pocket expenses incurred in providing those services

    However, any such collective or cooperative organization shall pay applicable

    sales tax on such sales and maintain the applicable sellers permit or similar

    permit from the State Franchise Tax Board or other applicable agency.

    2. A current registry of employees and any contractors and/or volunteers, who are

    engaged in the cultivation operation, all of whom shall be subject to passing

    background investigations as specified in Section 72A.6(j) of this Article. The

    registry shall be provided to the Sheriff at any time upon request. The registry

    shall include the name, current residential address, telephone number, date of

    birth and the height, weight and color of eyes and hair of each such person.

    (b) The permit holder shall maintain a not-for-profit status, and any compensation for

    the operators time shall be consistent with Federal Income Tax laws for reasonable

    compensation. Medical Marijuana cultivation sites shall not be operated for profit.

    (c) The minor use permit shall be valid for an initial term of two (2) years, and may be

    renewed every two (2) years thereafter, provided that the operation remains in

    compliance with the applicable provisions of this Article and Chapter, and any

    applicable state laws. Applications for renewal must be filed prior to the expiration date

    of the existing permit, and are subject to processing fees of 50% of the fee in effect for a

    minor use permit at the time of application for renewal.

    (d) Medical marijuana shall only be cultivated for the members of the collective or

    cooperative associated with the cultivation site. No distribution to non-members is

    permitted.

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    2. Written documentation establishing that the permit holder has confirmed the

    individual member has a recommendation from a physician by obtaining a written

    copy of that recommendation and including it in the membership records; or

    3. Written documentation establishing that the permit holder has confirmed the

    individual's primary caregiver status by making personal contact with the

    qualified patient and has confirmed the status of the qualified patient.

    (i) The permit holder shall track when individual member's medical marijuana

    recommendations, designations of primary caregivers, and/or identification cards expire.

    (j) The permit holder shall enforce conditions of membership by excluding frommembership individuals whose identification cards, physician recommendations, and/or

    designations of primary caregiver status are invalid or have expired, or who have

    diverted marijuana to non-members and/or for non-medical use.

    (k) All drying, weighing, packaging and labeling of medical marijuana produced on site shall

    be conducted within a designated area and/or building(s) on site.

    (l) Dispensing of medical marijuana produced on site shall not be conducted from an off site

    premise unless said premise is an approved dispensary regulated under Article 72 of the

    Lake County Code.

    72A.8 Grounds for Revocation or Denial of Minor Use Permit

    (a) Failure to comply with the provisions of this Article shall be grounds for permi

    revocation or denial of a permit extension.

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    (b) Filing of an application for a minor use permit for a collective or cooperative

    medical marijuana cultivation site after the unpermitted commencement of said

    cultivation has already begun shall be grounds for denial of the permit by the Zoning

    Administrator. Any operation of a cultivation site while a minor use permit application is

    being processed by the County shall also be grounds for denial.

    72A.9 Nuisance Declared; Cultivation Restrictions; Misdemeanor Violation

    The cultivation of marijuana plants in excess of the amounts specified by this Article for

    individuals and collective or cooperative organizations, either indoors, outdoors, or combination

    thereof on any premises is hereby declared to be unlawful and a public nuisance that may be

    abated in accordance with Chapter 13 of the Lake County Code.

    Any person, or collective or cooperative organization violating any of the cultivation limitations

    set forth in this Article, and any collective or cooperative organization failing to obtain permits

    for their cultivation operations shall be guilty of a misdemeanor, and shall be punishable

    accordingly. Each person shall be guilty of a separate offense for each and every day of which

    any violation of the cultivation limits of this Article is committed.

    72A.10 Abatement procedures.

    Whenever the Community Development Director or his or her designee determines that a public

    nuisance exists (as defined in this Article and/or Chapter 13 of the Lake County Code), he or

    she, or his or her designee, shall request in writing that the public nuisance be abated within

    seventy-two (72) hours. If the condition(s) continue beyond that seventy-two (72) hour period,

    the Community Development Director or his or her designee may set the matter for hearing in

    accordance with the procedures specified in Chapter 13 of the Lake County Code.

    72A.11 Release of the County from Liability: In a form satisfactory to the County of Lake, the

    Medical Marijuana collective or cooperative cultivation site permittees, operators and

    employees, the members of collectives and/or cooperatives associated with the cultivation sites

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    and the property owner{s) of record for each cultivation site, shall release and hold harmless

    Lake County, and its agents, officers, elected officials, and employees from injuries, damages, or

    liabilities of any kind that result from the operations and activities at medical marijuana

    cultivation sites including, but not limited to, any arrest or prosecution of medical marijuana

    cultivation site owners, permittees, operators and employees, and the members of collectives

    and/or cooperatives associated with medical marijuana cultivation sites, for violation of state or

    federal laws.

    72A.12 Indemnification: Each permit issued pursuant to this Article shall have as a condition of

    the permit, a requirement that the applicant indemnify and hold harmless the County and its

    Officers, agents, and employees from actions or claims of any description brought on account ofany injury or damages sustained, by any person or property resulting from the issuance of the

    permit and the conduct of the activities authorized under said permit.

    72A.13 Liability: The provisions of this Article shall not be construed to protect the Medical

    Marijuana cultivation site owners, permittees, operators and employees, the members of

    collectives and/or cooperatives associated with Medical Marijuana cultivation site, and the

    property owner(s) of record for each site from prosecution pursuant to any laws that may prohibit

    the cultivation, sale, and/or possession of controlled substances. Moreover, cultivation, sale,

    possession, distribution, and use of marijuana remain violations of federal law as of the date of

    adoption of the ordinance creating this Section, and this Section is not intended to, and does not

    protect any of the above described persons from arrest or prosecution under those federal laws.

    Medical Marijuana cultivation site owners, permittees, operators and employees, the members of

    collectives and/or cooperatives associated with cultivation sites, and the property owner{s) of

    record for each cultivation site assume any and all risk and any and all liability that may arise or

    result under state and federal criminal laws from operation of a Medical Marijuana cultivation

    site. Further, to the fullest extent permitted by law, any actions taken under the provisions of this

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    Section by any public officer or employee of the County of Lake or by Lake County itself shall

    not become a personal liability of such person or a liability of the County.

    72A.14 Conflicts with Other Codes: If this Article is found to be in conflict with any other

    Chapter, Section, Subsection, or Title, the provisions of this Article shall prevail.

    Section 2: Severability of Parts of this Article: It is hereby declared to be the intention of the

    Board of Supervisors that the sections, paragraphs, sentences, clauses and phrases of this

    Article are severable, and if any phrase, clause, sentence, paragraph, or section of this

    Article shall be declared unconstitutional by the valid judgment or decree of court of

    competent jurisdiction, such unconstitutionality shall not affect any of the remaining

    phrases, clauses, sentences, paragraphs and sections of this Article.

    Section 3: All ordinances or resolutions in conflict herewith are hereby repealed to the extent of

    such conflict and no further.

    Section 4: This project is exempt from California Environmental Quality Act requirements in that it

    can be seen with certainty that there is no possibility that the activity in question will

    have a significant effect upon the environment.

    Section 5: This ordinance shall take effect on the ___ day of _______, 2011. Within fifteen (15)

    days after adoption of the ordinance, the Clerk to the Board of Supervisors shall at least

    once in a newspaper of general circulation printed and published in the County of Lake

    publish a summary of the Ordinance with the names of those supervisors voting for and

    against the ordinance and the Clerk shall post in the office of the Clerk to the Board of

    Supervisors a certified copy of the full text of the adopted ordinance along with the

    names of those supervisors voting for and against the Ordinance.

    The foregoing Ordinance was introduced before the Board of Supervisors of the County of Lake

    on the ___day of ______, 2011, and passed by the by the following vote on the ___day of

    ______ 2011:

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    AYES:

    NOES:

    ABSENT OR NOT VOTING:

    COUNTY OF LAKE

    ______________________

    ATTEST: KELLY F. COX Chair Board of Supervisors

    Clerk of the Board of Supervisors

    By: _______________________

    APPROVED AS TO FORM: APPROVED AS TO FORM:

    ANITA L. GRANT Community Development Department

    County CounselBy: _______________________ By: _______________________