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HomeMy Public PortalAboutOrdinance 417 Adpoting Licensing & Operational Requirements for Retail Marijuana Business, & Repealing Moratorium TOWN OF FRASER ORDINANCE NO. 417 Series 2014 AN ORDINANCE AMENDING THE FRASER MUNICIPAL CODE BY ADOPTING LICENSING AND OPERATIONAL REQUIREMENTS FOR RETAIL MARIJUANA BUSINESSES WITHIN THE TOWN OF FRASER; REPEALING THE EXISTING MORATORIUM REGARDING THE LICENSING OF SUCH BUSINESSES; AND DECLARING AN EMERGENCY. WHEREAS, Amendment 64 was adopted in Colorado on November 6, 2012; and WHEREAS, Amendment 64, codified in Section 16 of Article XVIII of the Colorado Constitution, permits adults over the age of twenty-one to consume, possess, and cultivate limited amounts of marijuana pursuant to the restrictions therein and permits the State and local governments to license and regulate Retail Marijuana Establishments to grow, sell, produce, and test marijuana and marijuana products for consumers; and WHEREAS, the Colorado General Assembly has adopted the Colorado Retail Marijuana Code C.R.S 12-43.4-101 et seq., which provides statutory authority to regulate the cultivation, manufacture, distribution and sale of retail marijuana; and WHEREAS, the Colorado Retail Marijuana Code states that on or after October 1, 2013, businesses engaged in the cultivation, manufacture or sale of marijuana, in the processing of marijuana-infused products, or testing of marijuana shall apply for a license subject to its terms and conditions and any rules promulgated pursuant thereto; and WHEREAS, the Colorado Constitution also authorizes municipalities in Colorado to prohibit or regulate retail marijuana businesses and to adopt regulations consistent with the intent of the state law; and WHEREAS, the Board of Trustees has previously adopted Ordinance No. 411 which imposed a temporary moratorium on the licensing of retail marijuana businesses pending the adoption of state and local regulations regarding such businesses, and such moratorium will expire on January 23, 2014; and WHEREAS, the Board of Trustees is now prepared to adopt local regulations regarding the local licensing and operation of retail marijuana businesses, as provided in this Ordinance and in accordance with the Colorado Retail Marijuana Code; and WHEREAS, at the coordinated election held on November 12, 2013, the registered electors of Fraser approved a ballot question to impose an additional excise tax on the sale of retail marijuana and retail marijuana products, at the rate of five percent of the gross amount paid in connection with such sales; and WHEREAS, the Board of Trustees finds and determines that the provisions of this Ordinance and the regulations herein adopted for the licensing and operation of retail marijuana businesses are reasonable and necessary to protect and preserve the health, safety and welfare of the citizens of the Town of Fraser, Colorado. NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO, AS FOLLOWS: PART 1: AMENDMENT OF MUNICIPAL CODE. 1.1 The Code of the Town of Fraser, Colorado (herein sometimes referred to as the "Municipal Code"), is hereby amended by adding a new Article to Chapter 6 of said Code, to be numbered "Article 6 - Retail Marijuana Businesses", which shall read as set forth in Exhibit "A" attached hereto and incorporated herein by this reference. 1_2 The Fee Schedule set forth in Appendix A of the Municipal Code is hereby amended by adding the following fees under Chapter 6 of said Appendix A: Municipal Code-Based Fees,Costs and Deposits Code .Section Fee/Charge Amount Chapter 6 6-6-60 Application fee for new retail marijuana business $250.00 for existing medical marijuana license business owner;$2,500.00 for other applicants. These local application fees are to be collected and remitted by the state licensing authority. 6-6-60 Annual operating fee for each retail marijuana $500.00 plus reimbursement of any establishment additional fees or expenses incurred by the Town and/or reimbursement of any Town expenses incurred in excess of this amount. 6-6-60 Change of location application fee $700.00 6-6-60 Modification of premises application fee $700.00 6-6-60 Change of corporate structure/officers/directors $500.00 (for each owner/officer/director added) 6-6-60 Manager registration(if not an owner) $500.00 6-6-110 Transfer of ownership application fee(new $2,500.00 entity) - 2 - PART 2: REPEAL OF MORATORIUM. 2_1 The temporary moratorium on the licensing of retail marijuana businesses, pursuant to the provisions of Ordinance No. 411, is hereby repealed effective as of the date this Ordinance takes effect. PART 3: PENALTY CLAUSES. The following section of the Code of the Town of Fraser, Colorado, contains penalty clauses applicable to violations of this Ordinance, and such section is herewith set forth in full and hereby enacted: Sec. 1-4-10. General penalty for violation. It shall be unlawful for any person to violate, disobey, omit, neglect, refuse or fail to comply with or resist the enforcement of any provision of this Code; and where no specific penalty is provided therefor, the violation of any provision of this Code shall be punished by a fine not exceeding two thousand six hundred fifty dollars ($2,650.00), by imprisonment for a term not exceeding one (1) year, or by both such fine and imprisonment. Each day such violation continues shall be considered a separate offense. PART 4: REPEAL. In addition to the repeal of the temporary moratorium, as provided in Part 2 hereof, any and all existing ordinances or parts of ordinances of the Town of Fraser covering the same matters as embraced in this Ordinance are hereby repealed and all ordinances or parts of ordinances inconsistent with the provisions of this ordinance are hereby repealed; provided, however, that such repeal shall not affect or prevent the prosecution or punishment of any person for any act done or committed in violation of any ordinance hereby repealed prior to the taking effect of this Ordinance. PART 5: SEVERABILITY. If any section, subsection, sentence, clause or phrase of this Ordinance or the said Codes adopted herein is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance or said Codes. The Town of Fraser hereby declares that it would have adopted this Ordinance and said Codes, and each section, subsection, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases thereof be declared invalid or unconstitutional. PART 6: DECLARATION OF EMERGENCY; EFFECTIVE DATE. Because of the immediate risk that inappropriate retail marijuana businesses might be permitted upon expiration of the existing state and local moratoriums, the Board of Trustees hereby 3 - finds, determines, and declares that an emergency exists, that this Ordinance is necessary for the immediate preservation of public peace, health, safety and welfare, and that it shall be in full force and effect immediately upon adoption. PART 7: PUBLICATION. This Ordinance shall be published by title only. READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF TRUSTEES AND SIGNED THIS 22nd day of JANUARY, 2014. Votes in favor: �2— BOARD OF TRUSTEES OF THE Votes opposed: �_ TOW"F FRASER, COLORADO Votes abstained: BY: _ ,, �'. Pe 99" yzmi , ayor ATT ( SEAL ) Lu Berger, Town CI Published in the Middle Park Times on January 30, 2014. - 4 - EXHIBIT A ARTICLE 6 Retail Marijuana Businesses Sec. 6-6-10 Definitions. (a) As used in this Article the following words shall have the following meanings, unless the context clearly requires otherwise: RM Code means the Colorado Retail Marijuana Code, C.R.S. 12-43.4-101, et seq. RM Regulations means the Rules Regarding Retail Marijuana, 1 CCR 212-2, as adopted by Retail Marijuana Enforcement Division of the Colorado Department of Revenue, and any amendments thereto. Retail Marijuana Store means a retail marijuana store, as defined in Section 16 of Article XVIII of the Colorado Constitution or as may be more fully defined in the Colorado Retail Marijuana Code. (b) The terms defined in the RM Code and RM Regulations shall have the same meaning when used in this Article, unless context clearly requires otherwise. Sec. 6-6-20. Store License Required; Prohibited Operations (a) It is unlawful for any person to own or operate a Retail Marijuana Store within the Town of Fraser without first having obtained from the Town and the State a license for each facility to be operated in connection with such business. (b) Other types of retail marijuana establishments referred to in the RM Code and Section 16 of Article XVIII of the Colorado Constitution, including marijuana cultivation facilities, marijuana product manufacturing facilities and marijuana testing facilities are prohibited within the Town of Fraser. Sec. 6-6-30. Local Licensing Authority. (a) The Fraser Board of Trustees shall be the local licensing authority for the licensing of Retail Marijuana Stores pursuant to this Article, unless the Board designates other persons to serve as the local licensing authority. The local licensing authority shall possess all powers given to local licensing authorities by the provisions of the RM Code and RM Regulations. Any decision made by the local licensing authority to grant or deny a license, to revoke or suspend a license, or to renew or not renew a license shall be a final decision and may be appealed to the district court pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedure. (b) In case of an application resubmitted directly to the Town pursuant to Section 16(5) (h) of Article XVIII of the Colorado Constitution, due to the failure of the State licensing authority to act upon an application within ninety (90) days, the Board of Trustees shall also act as the licensing authority and all requirements of this Article shall apply to such application. In addition to compliance with this Article, the applicant shall demonstrate compliance with all applicable requirements of the RM Code and RM Regulations and shall pay to the Town the full amount of the application fee if not forwarded by the State. The local licensing authority shall approve or deny such application within ninety (90) days after receipt of the resubmitted application. (c) The Town Clerk shall assist the local licensing authority by receiving all applications; coordinating with other Town officers and departments when relevant; scheduling required public hearings; and providing notice in accordance with this Article and the RM Code. The Town Clerk shall also act as the local point-of-contact with the Colorado Marijuana Enforcement Division on retail marijuana regulatory matters. Sec. 6-6-40. Limitations and Requirements Applicable to Retail Marijuana Stores. (a) State Requirements: Retail Marijuana Stores must at all times comply with the regulations and requirements contained in the RM Code and RM Regulations with regard to applications, licensing and operations of licensed premises. The local licensing authority may revoke any license if the Retail Marijuana Store fails to comply with any and all applicable State requirements. (b) Location: Retail Marijuana Stores shall only be located on property within the Business zoning district. Retail Marijuana Stores are not permitted within any other zoning district or within any building that contains a residential dwelling or lodging unit. Retail Marijuana Stores shall not be permitted to operate as "home occupations." (c) Separation Requirements. (1) No Retail Marijuana Store shall be issued a license if, at the time of the initial application for such license, the proposed location is: a. within one thousand feet of any educational institution or school, either public or private; or b. within five hundred feet of any existing retail or medical marijuana business; or c. within two hundred feet of any existing licensed child care facility at time of initial application. (2) The distances set forth in this subsection shall be computed by direct measurement in a straight line from the nearest property line of the land used for the purposes stated above, respectively, to the nearest portion of the building in which the Retail Marijuana Store is located. The locational criteria contained in this subsection shall apply to all proposed changes in the location of an existing license. - 2 - (d) Co-location. A Retail Marijuana Store may be located on the same licensed premises as a Medical Marijuana Business licensed pursuant to Article 5 of this Chapter 6 and operated by the same licensee, subject to compliance with all State requirements and the requirements of this Article and the issuance of a State license allowing for such co-location. (e) Advertisements. Advertisements, signs, displays or other promotional material depicting marijuana uses or symbols shall not be shown or exhibited off the premises. No signage associated with a Retail Marijuana Store shall use the word "marijuana," "cannabis," or any other word or phrase commonly understood to refer to marijuana. No signage may display photographs or other representations of marijuana plants. (f) Indoor Operation; Odors. All retail marijuana dispensing and storage activities shall be conducted indoors. Products, accessories, and associated paraphernalia shall not be visible from a public sidewalk or right of way. (g) Inspection of Licensed Premises. During all business hours and other times of apparent activity, all licensed premises shall be subject to inspection by the Chief of Police or the Building Official, or the authorized representative of either of them, for the purpose of investigating and determining compliance with the provisions of this Article and any other applicable state or local law or regulation. Such inspection may include, but need not be limited to, the inspection of books, records and inventory. Where any part of the premises consists of a locked area, such area shall be made available for inspection, without delay, upon request. (h) Additional Requirements: Retail Marijuana Stores shall be subject to the following additional requirements: (1) The business may only be open for the sale or distribution of retail marijuana during the hours of 8:00 a.m. to 7:00 p.m. (2) No on-site consumption of marijuana is allowed. (3) A Fraser business license and sales tax license are required. (4) No mobile structure may be used to dispense retail marijuana. (5) No alcohol sales or consumption shall be permitted on the licensed premises. (6) A licensee shall not permit persons who do not possess a valid identification or other appropriate proof of age to loiter on or about the licensed premises. Sec. 6-6-50. Excise Tax. (a) A tax is imposed upon all retail sales of retail marijuana and retail marijuana products sold within the town of Fraser by licensed Retail Marijuana Stores at the rate of five percent (5.0%) of the gross price paid by the purchaser, rounded off to the nearest - 3 - penny. The tax imposed by this section is in addition to, and not in lieu of, the sales tax owed to the Town and all taxes owed to the State in connection with the sale of retail marijuana and retail marijuana products. (b) Except for those provisions that by their terms cannot apply, the procedures for the collection and enforcement of the Town's use tax as provided in Section 4-3-50(a) of this Code shall apply to the collection and enforcement of the retail marijuana excise tax imposed by this section. The Town Manager or his or her designee may adopt administrative rules and regulations specifying additional or alternative procedures for the collection and enforcement of the retail marijuana excise tax imposed by this section. Sec. 6-6-60. Application Requirements. (a) A person seeking to obtain a license pursuant to this article shall submit an application to the Town Clerk. The form of the application shall be as provided by the Town Clerk. (b) A license issued pursuant to this chapter does not eliminate the need for the licensee to obtain other required licenses and permits related to the operation of the Retail Marijuana Store, including, without limitation, any development approval required by this Code; a sales tax license; and a building, mechanical, plumbing, or electrical permit. (c) An application for a license under this article shall include the following information and any additional information required by the Town Clerk: (1) The applicant's name, address, telephone number, and Social Security number and, if the applicant is a partnership, the names and addresses of all the partners, and if the applicant is a corporation, the names and addresses of all the corporate officers, and if the applicant is a cooperative association, the names and addresses of its directors and officers; (2) A completed set of the applicant's fingerprints; (3) The street address of the proposed Retail Marijuana Store; (4) Proof of ownership; or if the applicant is not the owner of the proposed location of the Retail Marijuana Store, satisfactory proof that the applicant is or will be entitled to possession of the premises under a lease, rental agreement or other written agreement, including authorization to use the premises for a Retail Marijuana Store for which the application is made; (5) An acknowledgement by the applicant that the applicant and its owners, officers, and employees may be subject to prosecution under federal laws relating to the possession and distribution of controlled substances; that the Town of Fraser accepts no legal liability in connection with the approval and subsequent operation of the Retail Marijuana Store; and that the application and documents submitted for - 4 - other approvals relating to the Retail Marijuana Store operation are subject to disclosure in accordance with the Colorado Open Records Act. (d) In addition to the foregoing, an applicant shall also submit all other information required by the RM Code and RM Regulations for state and local applications. (e) When the application is filed, the applicant shall pay to the Town the local share of the application fee, as established pursuant to the RM Code, unless the State has forwarded such fee to the local licensing authority. (f) If an application is approved, the applicant shall also pay an annual operating fee in such amount as is established from time to time by the Board of Trustees and set forth in the appendices to this Code. (g) Each license issued pursuant to this chapter shall be valid for a period of one year from the date of issuance and may be renewed as provided in this section. An application for renewal shall be made to the Town Clerk not less than thirty (30) days prior to the date of expiration and concurrent with the application for renewal filed with the State licensing authority. The renewal application shall be accompanied by the annual operating fee(s) for the renewal term. The license shall be renewed by the Town Clerk unless the renewal is denied by the State licensing authority, or unless it appears to the Town Clerk that good cause exists to deny the renewal application, in which case the Town Clerk shall refer the application to the Board of Trustees for review at a public hearing. The Town Clerk shall refer the renewal application for public hearing only if the licensee has had complaints filed against it, the licensee has a history of violations, or there are allegations against the licensee that would constitute good cause for denial of a license as defined in the RM Code. The procedures provided in Sections 6-6-70 to 6- 6-90 shall apply to the Board of Trustees' review and determination whether to renew a license. In order to be entitled to such review, the applicant shall pay an additional fee equal to the application fee for a new license. (h) Except for direct applications pursuant to Subsection 6-6-30(b), the local licensing authority will not begin processing a license application until it receives notice of the application from the State licensing authority. The local licensing authority may await completion of the State licensing authority's review and issuance of the state license before processing the local application, or it may conduct a concurrent review of a new license application prior to the State licensing authority's final approval of the license application. The local licensing authority shall notify the State licensing authority whether it approves or denies any forwarded application. Sec. 6-6-70 Investigation of Applicant. (a) Upon receipt of an application for a license under this article, the Town Clerk shall transmit copies of the application to the Police Department, the Town Manager, the Planning and Building Department, and any other person or agency who the Town Clerk determines should participate in the review of the application. The Town or any of its departments or officials may visit and inspect the property in which the applicant - 5 - proposes to conduct business and investigate the fitness to conduct such business of any person, or the officers and directors of any corporation, or the partners of any partnership applying for a license. (b) In investigating the fitness of the applicant, the Town may obtain criminal history record information furnished by a criminal justice agency subject to any restrictions imposed by such agency. In the event the Town takes into consideration information concerning the applicant's criminal history record, the Town shall also consider any information provided by the applicant regarding such criminal history record, including, but not limited to, evidence of rehabilitation, character references, and educational achievements, especially those items pertaining to the period of time between the applicant's last criminal conviction and the consideration of the application for a license. (c) Not less than five days prior to the date of the public hearing on a license application or, in the event of an application for which no public hearing is scheduled, not less than five days prior to the decision to approve or deny an application, the Town Clerk shall make known the findings of the investigation in writing to the applicant and other parties of interest. Sec. 6-6-80 Public Hearings; Notice; Publication. (a) Upon receipt of an application for a local license, except an application for renewal or for transfer of ownership, the local licensing authority shall schedule a public hearing upon the application to be held not less than thirty days after the date of the application. The local licensing authority shall post and publish public notice thereof not less than ten days prior to the hearing. The local licensing authority shall give public notice by the posting of a sign in a conspicuous place on the retail marijuana center premises for which application has been made and by publication in a newspaper of general circulation in Grand County. (b) Public notice given by posting shall include a sign of suitable material, not less than twenty-two inches wide and twenty-six inches high, composed of letters not less than one inch in height and stating the type of license applied for, the date of the application, the date of the hearing, the name and address of the applicant, and such other information as may be required to fully apprise the public of the nature of the application. The sign shall contain the names and addresses of the officers, directors, or manager of the facility to be licensed. (c) Public notice given by publication shall contain the same information as that required for the posting of signs. (d) If the building in which retail marijuana is to be sold is in existence at the time of the application, the sign shall be posted so as to be conspicuous and plainly visible to the general public. If the building is not constructed at the time of the application, the applicant shall post a sign at the premises upon which the building is to be constructed in such a manner that the notice shall be conspicuous and plainly visible to the general public. - 6 - Sec. 6-6-90 Issuance or Denial of License. (a) Not less than five days prior to the date of the public hearing, the local licensing authority shall make known its findings, based on its investigation, in writing to the applicant and other parties of interest. The local licensing authority has authority to refuse to issue a license provided for in this section for good cause, subject to judicial review. (b) Before entering a decision approving or denying the application for a local license, the local licensing authority may consider, except where this Article specifically provides otherwise, the facts and evidence adduced as a result of its investigation, as well as any other facts pertinent to the application, including the number, type, and availability of retail marijuana outlets located in or near the premises under consideration, and any other pertinent matters affecting the qualifications of the applicant. (c) Within thirty days after the public hearing or completion of the application investigation, a local licensing authority shall issue its decision approving or denying an application for local licensure. The decision shall be in writing and shall state the reasons for the decision. The local licensing authority shall send a copy of the decision by certified mail to the applicant at the address shown in the application. (d) The Board of Trustees may impose reasonable conditions upon any license issued pursuant to this Article. (e) After approval of an application, a local licensing authority shall not issue a local license until the building in which the business to be conducted is ready for occupancy with such furniture, fixtures, and equipment in place as are necessary to comply with the applicable provisions of this chapter, and then only after the local licensing authority or its designee has inspected the premises to determine that the applicant has complied with the architect's drawing and the plot plan and detailed sketch for the interior of the building submitted with the application. (f) After approval of an application for local licensure, the local licensing authority shall notify the state licensing authority of such approval. Sec. 6-6-100. Contents and Display of License. The licensee shall post the license in a conspicuous location at the Retail Marijuana Store. A Retail Marijuana Store license shall contain the following information: (1) The name of the licensee; The date of issuance of the license; The street address at which the licensee is authorized to operate the Retail Marijuana Store; (2) Any conditions of approval imposed upon the license by the Board of Trustees; (3) The date of expiration of the license; and - 7 - (4) The license shall be signed by the applicant and the Town Clerk Sec. 6-6-110 Transfer of Ownership. In determining whether to permit a transfer of ownership, the local licensing authority shall consider only the requirements of this Article, the RM Code and RM Regulations. The local licensing authority may hold a hearing on the application for a transfer of ownership; provided the local licensing authority shall not hold a hearing pursuant to this section until the local licensing authority has posted a notice of hearing in the manner described in Section 6-6-80 on the licensed premises for a period of ten days and provided notice of the hearing to the applicant at least ten days prior to the hearing. An application fee shall accompany each application for a transfer of ownership, in such amount as is established from time to time by the Board of Trustees and as set forth in the appendices to this Code. Sec. 6-6-120 Suspension or Revocation. (a) The local licensing authority may revoke or elect not to renew any license if it determines that the licensed premises have been inactive, without good cause, for at least one year. (b) In addition to any other sanctions prescribed by this Article, the RM Code or the RM Regulations, the local licensing authority has the power, on its own motion or on complaint, after investigation and opportunity for a public hearing at which the licensee shall be afforded an opportunity to be heard, to suspend or revoke a license issued by the local licensing authority for a violation by the licensee or by any of the agents or employees of the licensee of the provisions of this Article, the RM Code or RM Regulations, or of any of the terms, conditions, or provisions of the license. The local licensing authority has the power to administer oaths and issue subpoenas to require the presence of persons and the production of papers, books, and records necessary to the determination of a hearing that the state or local licensing authority is authorized to conduct. (c) The state or local licensing authority shall provide notice of suspension, revocation, fine, or other sanction, as well as the required notice of the hearing pursuant to subsection (b), by mailing the same in writing to the licensee at the address contained in the license. Except in the case of a summary suspension, a suspension shall not be for a longer period than six months. If a license is suspended or revoked, a part of the fees paid therefore shall not be returned to the licensee. Any license or permit may be summarily suspended by the local licensing authority without notice pending any prosecution, investigation, or public hearing pursuant to the terms of C.R.S. § 24-4-104(4). - 8 - (d) Whenever a decision of the local licensing authority suspending a license for fourteen days or less becomes final, the licensee may, before the operative date of the suspension, petition for permission to pay a fine in lieu of having the license suspended for all or part of the suspension period. Upon the receipt of the petition, the local licensing authority may, in its sole discretion, stay the proposed suspension and cause any investigation to be made which it deems desirable and may, in its sole discretion, grant the petition if the local licensing authority is satisfied that: (1) The public welfare and morals would not be impaired by permitting the licensee to operate during the period set for suspension and that the payment of the fine will achieve the desired disciplinary purposes; (2) The books and records of the licensee are kept in such a manner that the loss of sales that the licensee would have suffered had the suspension gone into effect can be determined with reasonable accuracy; and (3) The licensee has not had his or her license suspended or revoked, nor had any suspension stayed by payment of a fine, during the two years immediately preceding the date of the motion or complaint that resulted in a final decision to suspend the license or permit. (e) The fine accepted shall be not less than five hundred dollars or more than one hundred thousand dollars. (f) Payment of a fine shall be in the form of cash, a certified check or cashier's check made payable to the local licensing authority. (g) Upon payment of the fine pursuant to subsection (c), the local licensing authority shall enter its further order permanently staying the imposition of the suspension. Sec. 6-6-130. Penalty. Failure to comply with the provisions of this Article shall constitute a violation of this Code, and in addition to being grounds for denial, suspension or revocation of a license, such violation may be punished by a civil penalty in an amount not exceeding the maximum fine provided in Section 1-4-10 of this Code. Proceedings for the determination of such liability and imposition of such civil penalty shall be conducted in the Municipal Court in the same manner as proceedings relating to noncriminal traffic infractions, in accordance with the provisions of Article 1 of Chapter 8 of this Code. In no case shall any defendant found guilty of any violation of this Article be punished by imprisonment for such violation. - 9 -