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By-law No. 2007-073 THE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NUMBER 2007-073 Being a By-law to Establish a Policy Regarding Buildings That Contained a Marijuana Grow Operation WHEREAS the Municipal Act, 2001, S.O. 2001, c. 25 as amended requires Municipalities to inspect dwellings known to have contained a Marijuana Grow Operation,upon being notified by a police force; AND WHEREAS the Occupational Health and Safety Act, R.S.O. 1990 c. 0.1 provides for certain obligations of an employer to protect the health and safety of its workers; AND WHEREAS the Council of the Corporation of the Municipality of Bayham is desirous that a policy be established to meet its obligations under the said Municipal Act regarding marijuana grow operations while ensuring the safety of its workers; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ENACTS AS FOLLOWS: 1. THAT the Council of The Corporation of the Municipality of Bayham hereby establishes a policy to be known as the "Policy Regarding Marijuana Grow Operations" as set out in Schedule"A" attached hereto and forming part of this by-law. 2. THAT this By-law shall come into full force and effect on the date of its passage. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 19T11 DAY OF JULY, 2007. * '��; CL RK MUNICIPALITY OF BAYHAM eh_ a_00,_ 013 POLICY SUBJECT: MARIJUANA GROW OPERATIONS DATE: May 'L4, 2007 PURPOSE:To establish a policy and procedure to ensure the Municipality meets its obligations under the Municipal Act 2001, as amended, regarding inspection of dwellings known to have contained a Marijuana Grow Operation. To establish a policy and guideline for the safety of staff during an inspection of a dwelling, known to have contained a Marijuana Grow Operation. SCOPE: All Municipal staff shall follow this policy and guideline. Background The Municipal Act 2001 was amended requiring Municipalities to inspect a dwelling known to have contained a Marijuana Grow Operation,upon being notified by the local police agency. Municipal Act, 2001 11. The Municipal Act, 2001 is amended by adding the following section: Inspection of buildings containing marijuana grow operations 431.1 (1) If the clerk of a local municipality is notified in writing by a police force that a building located on land in the local municipality contained a marijuana grow operation, the local municipality shall ensure that an inspection of the building is conducted within a reasonable time after the clerk has been notified. Persons who may conduct inspection (2) An inspection referred to in subsection(1)may be conducted by, (a) a by-law enforcement officer of any municipality or of any local board of any municipality; or Page 1 of 6 (b) an officer, employee or agent of any municipality or of any local board of any municipality whose responsibilities include the enforcement of a by-law, an Act or a regulation under an Act. Nature of inspection (3) The requirement in subsection(1) for an inspection is for an inspection that includes entering upon the land and into the building. Powers to conduct inspection (4) The inspection shall be conducted pursuant to the powers of entry and inspection that the person conducting the inspection otherwise has under law,but only to the extent that the person conducting the inspection is able to do so Action to be taken (5) Upon conclusion of the inspection,the person who conducted the inspection shall take whatever actions he or she is authorized by law to take in order to make the building safe and otherwise protect the public. Definition (6) In this section, "police force"means a municipal police force, the Ontario Provincial Police or the Royal Canadian Mounted Police. 12. The Act is amended by adding the following section: Where marijuana grow operation is in a lower-tier municipality 431.2 (1) If the clerk of a local municipality that is a lower-tier municipality is notified under subsection 431.1 (1)that a building located on land in the lower-tier municipality contained a marijuana grow operation,the lower-tier municipality shall, if in its opinion it is appropriate to do so, forward a copy of the notice referred to in subsection 431.1 (1)to the clerk of the upper-tier municipality of which the lower-tier municipality forms a part. Definitions For the purpose of this policy the following terms shall be defined as follows: By-law enforcement officer: A municipal employee who is charged with the responsibility of enforcing by-laws under the authority of section 15.1 of the Ontario Building Code Act. Agent: A person authorized to act for and under the direction of another person when dealing with third parties. Health and Safety The following conditions have been identified as some of the risks known to be associated with Marijuana Grow Houses: Page 2 of 6 • POISONOUS FUMES—noxious fumes from the growing operation can build up inside a Marijuana Grow House, or be vented from it. Mold and fungus from condensation can accumulate inside the growing operation, creating a health hazard. Gases from chemicals used in the growing operation can also build up inside the house, or vented outside(which effect neighboring homes). • FIRES—electricity is bypassed, so that it is diverted from neighboring homes. This increases the chance of fires starting due to the amateur rewiring jobs. • ELECTROCUTION—people inexperienced with rewiring electrical systems may electrocute themselves, or people exposed to the wiring may be electrocuted. The electricity bypasses charging the ground itself can also shock people. * STRUCTURAL DAMAGE — houses are modified to suit the growing operation; damage may be caused from the construction or the cultivation of marijuana. Extensive repairs are required to make the house habitable after the growing operation has been shut down. The Municipal Act Section 431.1 implies there is a statutory obligation to go inside the building; there are two arguments contrary to this position: 1) The Occupational Health and Safety Act also states: (2)Despite anything in any general or special Act, the provisions of this Act and the regulations prevail. R.S.O. 1990, c. 0.1, s. 2. This means should there be a conflict between the provisions of the Municipal Act and the Occupational Health and Safety Act, the Occupational Health and safety Act would prevail. Building Code Act The Building Code Act Subsection 16(1) states: Despite sections 8, 12, 15, 15.2, 15.4 and 15.9, an inspector or officer shall not enter or remain in any room or place actually being used as a dwelling unless, (a) the consent of the occupier is obtained, the occupier first having been informed that the right of entry may be refused and entry made only under the authority of a warrant issued under this Act; (a.1) a warrant issued under this Act is obtained; (b) the delay necessary to obtain a warrant or the consent of the occupier would result in an immediate danger to the health or safety of any person; (c) the entry is necessary to terminate a danger under subsection 15.7 (3) or 15.10(3); or (d) the requirements of subsection (2) are met and the entry is necessary to remove a building or restore a site under subsection 8 Page 3 of 6 (6), to remove an unsafe condition under clause 15.9(6) (b) or to repair or demolish under subsection 15.4 (1). 1992, c. 23, Policy Objectives: Show that the municipality has fulfilled its responsibility under The Municipal Act 2001, Sec 431.1 and provided due diligence. • The Primary concerns with Marijuana Grow Houses are located in the interior of the building therefore there are 2 concerns (1) access to the interior and (2) the conditions within the interior. ▪ In order to ensure the safety of the general public and prevent unauthorized access to the interior it would be necessary to send a by-law officer to the location to determine if(a) the building is occupied, and (b) if the building is not occupied if entry is prevented. Ensure no member of the general public or staff is placed at risk. • Preventing access to an unoccupied building would ensure that no member of the general public is placed at risk. • No member of staff should be required to enter a property identified as a Marijuana Grow House unless he or she is fully acquainted with the possible air quality issues present within, equipped with the necessary safety equipment and trained to use it. Ensure any prospective purchaser of the property is made aware the property has been used as a Marijuana Grow Operation until it is brought into a state of compliance. Policy Upon the Clerk receiving notification from the Ontario Provincial Police, a By-law Enforcement Officer(BLEO) shall attend the known property to ascertain if the dwelling is occupied. If the BLEO has concerns regarding his/her safety he/she may request the assistance of the OPP. The Chief Building Official (CBO) shall exercise his/her authority under the Ontario Building Code (OBC) Section 15.9 to issue Orders he/she deems necessary, to the property owner and any other person the he/she deems appropriate. The Orders shall require the owner of the property to supply the assigned BLEO with reports on the condition of the property from experts in (i) air quality, (ii) electrical systems &(iii) structural issues, or to the satisfaction of the CBO and assigned BLEO. An expert conducting inspections pursuant to the Orders and providing a report shall be considered an"Agent" and as such satisfy the requirements of sec 431.1 of the Municipal Act. In the event Orders issued for reports by the CBO under section 15.9 of the OBC have not been responded to, a Municipal By-law Enforcement Officer shall prepare an Order under the authority of Section 15.2 of the OBC, which would reference any section in Municipal By-law 2002-010 (Property Maintenance and Occupancy Standards) requiring Page 4 of 6 the owner to address the identified hazard(s). The Order shall contain a paragraph,which would have a meaning such as: "This property has been identified as having been used as a Marijhuana Grow Operation. Operations of this nature are well known to have detremental effects on the air quality, elcetrical system and structural dements within the structure. Orders have been issued requesting the owner provide reports on the above noted elements,however,as yet these orders have not been complied with. Therefore it is the opinion of the municipality that this property should not be occupied until these reports have been received and any identified conditions corrected" The Municipal BLEO shall register the Order on the title of the property, until the Orders issued under OBC Sectionl5.8 have been satisfied and any identified conditions corrected. Page 5 of 6 "SCHEDULE A" Marijhuana Grow Operation Protocol Receive report from Police Attend & inspect to determine if occupied or insecure V 4 OCCUPIED OR SECURE INSECURE V Issue Orders under 15.8 for reports on Issue Emergency Order under • Air Quality 4 15.7. Secure property from • Electrical system unauthorized access. • Structural V V 15.8 Order responded to: 15.8 Orders not responded to: V V Issue 15.2 Order prohibiting Issue 15.2 Orders which address occupancy and register on title the concerns identified in the 4 until the 15.8 Orders are reports. responded to Page 6 of 6