HomeMy WebLinkAbout2011/09/13 Item 14CITY COUNCIL
AGENDA STATEMENT
~..%. cITY of
CHULA VISTA
September 13, 2011 Item
ITEM TITLE: PUBLIC HEARING: CONSIDERATION OF IMPLEMENTING
CITY COUNCIL PROHIBITION OF MEDICAL MARIJUANA
DISPENSARIES THROUGH ORDINANCE ENACTING CHULA
VISTA MUNICIPAL CODE CHAPTER 5.66 (MEDICAL
MARIJUANA DISPENSARIES)
ORDINANCE OF THE
MUNICIPAL CODE
DISPENSARIES)
SUBMITTED BY:
REVIEWED BY:
CITY ATTORNEY' S
CITY ATTORNEY'S
CITY OF CHULA VISTA ENACTING
MARIJUANA
^ NO
SUMMARY
On July 15, 2011, the City Council approved Resolution No. 2011-143, entitled First Resolution
of the City Council of Chula Vista Directing City Staff To Implement The Public Safety
Subcommittee Recommendation Regarding Medical Marijuana Dispensaries and Related
Policies ("Resolution"). By adding Chapter 5.66 to the Chula Vista Municipal Code, this item
implements the component of the Resolution that prohibits "medical marijuana dispensaries"
(defined [in the Resolution] as "commercial retail operations and similar operations." Staff
analysis and proposals for implementation of other components of the Resolution are ongoing.
These will be presented to Council at a future date.
Staff's previous detailed presentation on this topic presented to City Counci] on July 12, 2011, is
attached hereto for background information.
ENVIRONMENTAL REVIEW
This proposed activity has been reviewed for compliance with the California Environmental
Quality Act (CEQA) and it has been determined that the activity is not a "Project" as defined
under Section 15378 of the state CEQA Guidelines because it will not result in a physical change
in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines,
the activity is not subject to the CEQA. Thus, no environmental review is necessary.
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RECOMMENDATIONS
Staff recommends that the Council approve the ordinance enacting Chapter 5.66 (Medical
Marijuana Dispensaries) in order to implement previous City Council direction.
BOARDS/COMMISSION RECOMMENDATION
This action is consistent with the June 15, 2011 Public Safety Subcommittee action and
recommendation.
DECISION MAKER CONFLICT
This item is not site-specific therefore there are no conflicts based on the 500-foot proximity of
councilmember property holdings.
DISCUSSION
In order to formally implement City Council's action to prohibit medical marijuana dispensaries,
the City Attorney's Office has created a new Chapter within the Chula Vista Municipal Code.
The Chapter falls within Title 5, which governs "Business Licenses, Taxes and Regulations."
Staff feels that incorporation of this Chapter within this Title is appropriate, because Title 5
contains regulations governing many different types of businesses. This Chapter is contained in
the ordinance submitted herewith. The Chapter is similar to ordinances of other California cities
and counties that have opted for a similar approach to addressing this issue. The Chapter does
not provide for criminal enforcement in order to assure compliance with state law. Those who
violate the provisions of the Chapter could still face administrative sanctions and fines, civil
penalties, civil lawsuits and nuisance abatement actions, among other remedies.
Enacting this Chapter conforms with Item l.b. of Resolution No. 2011-143, which directed City
Staff to: "Continue to allow conventional patient/cazegiver medical marijuana distribution
(defined as a health clinic, a health care facility, a residential care facility for persons with
chronic, life-threatening illnesses, a licensed residential care facility for the elderly, and/or a
residential hospice or a home health agency as authorized by Health & Safety Code)." To ensure
the facilitation and protection of this traditional caregiver-patient relationship, a carefully crafred
definition of "Medical Marijuana Dispensary" was included in this Chapter. This definition,
while prohibiting "Medical Mazijuana Dispensaz[ies]" exempts those facilities traditionally
associated with medical and residential care.
A prohibited Medical Mazijuana dispensary is defined in CVMC Section 5.66.10 as "any fixed
facility or location" where three or more individuals are involved in the sale, transmission,
cultivation or distribution of medical marijuana. (See specific language attached.)
This item is the first step in implementing Resolution No. 2011-143. Additional items for future
Council consideration include (1) a permit process and system for monitoring and registering
medical marijuana delivery services, and (2) further study of medical marijuana collective and
cooperative models that comply with the Attorney General's guidelines and address other City
staff public safety, land use and legal concerns. Depending on the outcome of this work and
analysis, amendments to this new Chapter 5.66 could be proposed and implemented.
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Planning Department staff does not recommend altering the zoning ordinance at this time,
because a medical marijuana dispensary is not a permitted use within the zoning ordinance, nor
is it similar to any identified "unclassified use." Accordingly, such a use already is a "prohibited
use" from a zoning standpoint.
FISCAL IMPACT
To date, significant staff time has been expended. As staff proposals for implementation of other
components of Resolution No. 2011-143 are ongoing, additional staff expenses are anticipated,
but, at this time, not quantifiable. There will also be unlmown staff costs associated with
enforcement of this ordinance.
ATTACHMENTS
Previous staff report to City Council dated July 12, 2011.
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C1TY COUNCIL
AGENDA STATEMENT
_- J ~,,,w;; cITV of
CHULAVISTA
July 12, 2011 Item 25
ITEM TITLE: PRESENTATION OF PUBLIC SAFETY SUBCOMMITTEE
RECOMMENDATION REGARDING MEDICAL MARIJUANA
DISPENSARIES AND RELATED POLICIES AND CITY COUNCIL
DIRECTION TO STAFF REGARDING NEXT STEPS
SUBMITTED BY: CITY ATTORNEY<r
CHIEF OF POLICE
ASSISTANT CIT AGER, DIRECTOR OF DEVELOPMENT
SERVICES
REVIEWED BY: CITY MANAGER ST
~1 4/STHS VOTE: YES ^ NO
SUMMARY
With voter approval of Proposition 215 in 1996, the possession, distribution and use of mazijuana
for medicinal purposes was decriminalized in California under state law. State legislation
adopted in 2004, and Attorney General Guidelines promulgated in 2008 clarified-but only
somewhat-the manner in which this proposition might be implemented at the local level.
Within this challenging legal framework, particularly over the last 5 years, many different types
of medical marijuana distribution businesses have opened and begun operations, particularly in
larger urban areas. Cities and counties have reacted to the reality and prospect of these new
businesses in a number of ways, ranging from outright prohibitions (an action taken in
approximately 126 jurisdictions to date) to proposals for actual government participation in the
medical marijuana trade (as in Oakland and Isleton, although neither city ultimately took such an
action). In the middle of this spectrum, many jurisdictions have chosen to impose moratoria on
medical marijuana operations for purposes of studying the issue further, allowing for the
emergence of greater clazity on the available range of legal options, and/or allowing for the
development of regulatory "best practices." Almost every type of local action or response in this
area has met with strong objections and/or legal challenge in one form or another, presented by
one side or the other.
The first official City of Chula Vista action regarding medical marijuana was taken on July 21,
2009 with the adoption of a 45-day moratorium on medical marijuana "dispensazies" and related
operations. This moratorium was extended on September 1, 2009, and again on June 22, 2010.
During this two year time period the City Attorney's office monitored legal developments and
collected and analyzed other jurisdiction's attempts at regulation. The Police Department
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monitored and gathered information regarding observed and potential -crime and disorder
impacts. The Development Services Department monitored and gathered information regazding
state and local laws regarding zoning and neighborhood impacts. Staff has engaged and
exchanged information with multiple other jurisdictions confronting these same issues.
Information provided by medical marijuana advocacy groups has also been collected and
considered.
During this time period the legal challenges surrounding medical marijuana did not subside, and
regulatory "best practices" did not develop to the extent staff had hoped. With the expiration of
the City's moratorium approaching, the City Attorney's office engaged the City's Public Safety
Subcommittee in order to present an update on medical marijuana issues and options, and to take
public input. The Committee promptly took up the issue by agendizing the item for
consideration at two noticed public forums. The first occurred on May 18th, the second on June
15a'. Both public forums were well attended with substantial input provided by both local
residents and outside interests on all sides of the issue. After considering staff's presentations,
public input, and a recommendation from the City Manager, the Committee adopted a
recommendation that the City (1) prohibit storefront, commercial retail operations, (2) continue
to allow true "patient/cazegiver" distribution as defined by state code, (3) continue to allow
delivery service, (4) develop appropriate regulations for (2) and (3), and (5) further study and
consider medical marijuana "collectives" that comply with the Attorney General's guidelines.
This item presents the Committee's recommendation and asks for City Council direction on next
steps.
ENVIRONMENTAL REVIEW
This proposed activity has been reviewed for compliance with the California Environmental
Quality Act (CEQA) and it has been determined that the activity is not a "Project" as defined
under Section 15378 of the State CEQA Guidelines because it will not result in a physical
change in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA
Guidelines, the activity is not subject to the CEQA. Thus, no environmental review is necessary.
RECOMMENDATIONS
The Public Safety Subcommittee recommends that the City Council direct staff to take all
necessary steps to implement the following with respect to the possession, distribution and use of
medical marijuana within the City of Chula Vista:
Do not permit MMJ "dispensaries."
(defined as storefront, commercial retail operations)
2. Do continue to allow conventional patient/caregiver MMJ distribution
(defined as a health clinic, a health caze facility, a residential care facility for
persons with chronic, life-threatening illnesses, a licensed residential care facility
for the elderly, and/or a residential hospice or a home health agency as authorized
by Health & Safety Code Section 11362.7(d)(1),.)
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3 Do continue to allow MMJ delivery service.
4. Develop appropriate regulations for Items 2 and 3.
5. Further consider MMJ "collectives" that operate in accordance with the 2008
Attorney General's Guidelines by conducting further public outreach and study to
evaluate the extent of community need, impact on neighborhoods and whether or
not there exists an acceptable model of operation with matching, legally
defensible regulations.
This recommendation is substantially similar to the City Manager's recommendation, with the
exception that the City Manager does not endorse recommendation No. 5.
DECISION MAKER CONFLICT
This item is not site-specific therefore there are no conflicts based on the 500-foot proximity of
councilmember property holdings.
DISCUSSION
A. Leeal Framework
The legal framework in California regarding the distribution of medical marijuana is complex
and continues to evolve. Although Proposition 215 was passed back in 1996, since that time no
definitive guidance has been provided, by either the courts or the state, regarding the parameters
within which medical marijuana can be grown and distributed. This environment has been
frustrating for regulators and operators alike. What follows is a summary of the governing laws
and continuing legal issues in this azea. The last section contains the City Attorney's legal
conclusions and advice.
1. Proposition 215 and its Implementing Statutes and Guidelines
In 1996, California voters approved Proposition 215, also known as the "Compassionate
Use Act or 1996." Cal. Health & Safety Code § 11362.5. Proposition 215 provides seriously ill
Californians the ability to obtain and use mazijuana for medical purposes when such use is
recommended by a physician without risk of criminal prosecution. The recommendation can be
oral or written. Proposition 215 further provides that both the patient and the patient's "primary
caregiver" are exempt from prosecution for violating state laws against the possession and
cultivation of mazijuana. "Primazy caregiver" is defined as the individual designated by the
patient who has consistently assumed responsibility for the housing, health, or safety of that
person. Id.
Effective January 1, 2004, the Legislature enacted the "Article 2.5 Medical Marijuana
Program" [Medical Marijuana Program] also commonly referred to as "SB 420" (Senate Bill
420). Cal. Health & Safety Code §§ 11362.7-11362.83. The legislation expanded the state law
exemptions for qualified patients and primary cazegivers to include exemptions from arrest and
prosecution for possession for sale; transportation, distribution, and importation; maintaining a
place for unlawfully selling, distributing, or using; knowingly making available a place for
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unlawful manufacturing, storage, and distribution; and using such aplace. -The legislation also
allows marijuana to be collectively or cooperatively cultivated for medical purposes by qualified
patients and primary caregivers. Cal. Health & Safety Code § 11362.775. Cultivating or
distributing mazijuana for profit is expressly disallowed. Cal. Health & Safety Code §
11362.765(a). Primary caregivers may recover reasonable compensation for services and for out-
of-pocket expenses. Cal. Health & Safety Code § 1 li62.765(c).
State law does not exempt the smoking of medical marijuana in places where smoking is
otherwise prohibited, nor does it exempt smoking on a school bus, in a motor vehicle that is
being operated, or within 1,000 feet of a school, recreation center, or youth center, unless the
medical use occurs within a residence. Cal. Health & Safety Code § 11362.79. State law does not
require workplaces or jails to allow medical marijuana use. Cal. Health & Safety Code §
11367.785.
The Medical Marijuana Program also established a voluntary identification card system
to he maintained by the State Department of Health Services. Cal. Health & Safety Code §
11362.71. The intent of the Medical Mazijuana Program is, in part, to insure a uniform, statewide
identification program for patients and primary caregivers. As part of the Medical Mazijuana
Program, each county health department, or the county's designee, provides applications,
receives and processes completed applications, and issues identification cazds. Cal. Health &
Safety Code §§ 11362.71(b); 11362.72-11362.74. Participation is voluntary and possession of an
identification card is not required to qualify for the protections of Proposition 215 and the
Medical Marijuana Program. The County continues to issue identification cards.
On February 19, 2010, the California Legislature approved AB 2650. AB 2650, restricts
the location of a cooperative, collective or dispensary from being located within 600 feet of a
school. AB2650 has been the only alteration to the Health & Safety Code medical marijuana
provisions since 2004. See Cal. Health & Safety Code § 11362.768.
2. Case Law
California case law in this area has been slow to develop. However, since the enactment
of the City's moratorium and its subsequent expiration, there have been important rulings which
have shed some light on the legal status of dispensaries vis-a-vis the regulatory land use power of
municipalities. Because each city has employed a different approach to regulating and/or
prohibiting medical marijuana establishments case law results differ depending on the specific
ordinances and underlying facts.
City of Corona v. Naulls 166 Cal. App. 4a' 418 (20081. The California Appellate Court upheld a
trial court's injunction preventing the operation of a medical marijuana dispensary because it did
not comply with the City's zoning ordinance.
City of Claremont v. Kruse, 177 Cal. App. 4a' 1153 (2009. This case confirmed that the
Compassionate Use Act and Medical Marijuana Program do not preempt a city's enactment or
enforcement of land use, zoning or business license laws as they apply to medical marijuana
dispensaries. Based on the Court of Appeal's thorough analysis of state preemption law, cities
retain their police power to regulate and, if necessary, restrict the operation of dispensaries.
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Qualified Patients Association v. City ofAnaheim 187 Cal. App. 4~h 861 (20111. Plaintiffs sued
the City of Anaheim on the City's explicit ban on medical marijuana dispensaries. Trial court
upheld ban but ruled that federal law pre-empted state law. This case was expected to be the
Appellate Court's first ruling on a municipal ban but the Appellate Court reversed trial court's
ruling and order a retrial. Case re-tried this Spring, judgment is pending.
Los Angeles County v. Hill 192 Cal. App. 4a' 861 (2011). Upholds Los Angeles County's
regulations as not being pre-empted by the Compassionate Use Act "[t]he statute [CUA] does not
confer on qualified patients and their cazegivers the unfettered right to cultivate or dispense
marijuana anywhere they choose."
3. Pending State Legislation
There have been numerous efforts to further enhance and/or restrict medical marijuana
regulations in the State Legislature since passage of the Compassionate Use Act. The current
pending initiatives are:
Senate Bill (SB) 847 would prevent medical marijuana entities (dispensaries, collectives,
cooperatives, etc.) from being located 600 feet from a residential zone or residential use. On
June 29, 2011, SB 847 passed the State Assembly Committee on Local Government and was
referred to the Committee on Appropriations. Passage appeazs likely.
Assembly Bill (AB) 1300 seeks to clarify that local governments can enforce their land
use and municipal codes against dispensazies in a criminal manner. The Bill passed the
Assembly and is now pending in front of the Senate.
4. Federal Policy On Medical Mariiuana
Mazijuana in ~ form, medical or otherwise, still remains an illegal substance under the
federal Controlled Substances Act. This significantly complicates providing legal advice on this
issue and presents obstacles to comprehensive regulation on a local level.
Initially, the Obama Administration indicated a willingness to ease federal drug
enforcement efforts vis-a-vis patients and caregivers immunized from prosecution under state
law in Deputy Attorney General David Ogden's October 29, 2009 Memorandum.
However, more recently, U.S. Attorneys have been issuing warning letters to state and
local officials warning them that pemutting marijuana distribution and growing facilities under
state medical marijuana initiatives runs counter to federal law and could subject the entities and
individuals to prosecution. Laura Duffy, U.S. Attorney for the Southern District of California,
issued a similar warning via email on May 12, 2011.
Because of the resulting confusion between federal enforcement efforts and state medical
marijuana initiatives, the U.S. Department of Justice further qualified its position by stating "The
Ogden Memorandum was never intended to shield such activities from federal enforcement
action and prosecution, even where those activities purport to comply with state law. Persons
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who are in the business of cultivating, selling or distributing marijuana, and those who
knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless
of state law." June 29, 2011 "Memorandum for United States Attorneys" by James Cole, Deputy
Attorney General.
While there have not been any cases where federal prosecutors have charged legislators
with violating the Controlled Substances Act for implementing state medical marijuana
initiatives the risk, however, does exist and should be considered before proceeding.
5. City Attorney's Comments/Advice
The City Attorney's Office has been studying the evolving legal, regulatory and business
operations framework for medical marijuana distribution over the past 2 years. Although the
legal landscape remains complicated, the City Attorney's office offers the following advice and
conclusions:
1. The City has no legal obligation to permit the commercial distribution of
medical marijuana within City limits.
The state laws regarding medical marijuana "decriminalize" the cultivation,
distribution, possession and use of medical mazijuana in limited circumstances. They do not,
however, require local jurisdictions to "permit" commercial distribution operations. The City
reserves the right, under its fundamental "police powers" authority, to prohibit such operations in
order to preserve the "health, safety and welfare" of the community. Approximately 126 cities
within the state have already taken action to prohibit medical marijuana dispensaries. These
include the San Diego County cities of Santee, San Mazcos, Escondido, and Imperial Beach.
The right of a city to prohibit this activity is the consensus view of city attorneys within the
region; however, we are still awaiting a definitive appellate court case to confirm this authority.
2. Existing state law does not contemplate or approve of medical marijuana
"dispensaries."
The concept of a commercial storefront medical mazijuana distribution business,
commonly referred to as a "dispensary," is not created by state law; rather, it is a business model
developed by individuals within the medical marijuana community. The vast majority of such
businesses do not operate within the pazameters of the 2008 Attorney General Guidelines
regarding "cooperatives" and "collectives". A matrix that compares the key AG guidelines for
cooperatives and collectives with typical "dispensary" operations is attached to this report as
Attachment B. Current references to "dispensaries" in state law aze limited to
acknowledgements of their existence and do not constitute endorsements or confirmations of
their legality under state law.
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3. Although federal law implications remain unsettled, the City Council could
develop regulations to allow some form of "cooperative" or "collective" for the distribution
of medical marijuana.
Because of the nature of medical marijuana operations, and the practical and legal limits
on what you can regulate, it will be difficult to draft, and effectively enforce regulations that
distinguish between legal and illegal operations and that mitigate all likely negative impacts.
Moreover, based on the experiences in other jurisdictions, regulation enforcement efforts would
likely present a substantial drain on City Attorney, Code Enforcement and Police resources.
California cities that have adopted regulatory provisions aze now re-thinking their regulations as
a result of the proliferation of medical marijuana dispensazies and the ineffectiveness or legal
vulnerability of their regulations. The City of Los Angeles, for example, was forced to revise its
regulations and is now attempting to force the closure of 439 dispensaries.
Notwithstanding the foregoing, if the City Council ultimately determines to proceed with
medical marijuana dispensary regulations, or the exploration of suitable regulations for true
"collectives" or "cooperatives," the City Attorney's Office will work diligently with other City
departments to develop the best possible regulatory system.
B. Police Issues
The Police Department has been monitoring public safety issues related to operating
dispensaries in other jurisdictions. The Police Deparhnent possesses serious concerns that public
safety could be negatively affected should any form of a dispensayy be permitted. The formative
study in this azea, the 44-page 2009 California Police Chiefs Association's White Paper on
Marijuana Dispensaries, studied and analyzed medical marijuana dispensaries and concluded
there were adverse public safety secondary effects relating to these businesses. The Police
Department has contacted other agencies that have also reported similar issues surrounding their
dispensaries.
The Police Department, however, is sensitive to and acknowledges medical marijuana
patient and caregiver rights in its routine policing of the community. The Police Department has
enacted a training bulletin, with the assistance of the District Attorney, that facilitates the policies
and codes underlying the decriminalization ofinedical marijuana in California.
The Police Department also has concerns that perntting dispensaries could negatively
impact service to the community due to low staffing levels. There are already 650 police-
regulated businesses which require monitoring, permitting and background checks. Staffmg
levels aze at an all-time low and stand to be significantly impacted should storefront dispensaries
be permitted. Calls for service are anticipated to rise based on complaints from neighbors,
potential secondary street sales and robberies. Also, since Chula Vista is a border city, there are
unique policing concerns relating to cross-border narcotics trafficking which could be
complicated by permitting dispensaries.
Put simply, the Police Department is not staffed to regulate and monitor dispensaries nor
is it staffed to address the potential negative secondary effects that accompany these businesses.
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C. Planning and Zoning
Development Services staff has compiled and analyzed medical marijuana ordinances
from jurisdictions throughout California. These ordinances typically require that dispensaries be
located in commercial/industrial zones and maintain a minimum distance from sensitive uses
such as schools, parks, daycare facilities, and librazies. This distance is typically between 600
and 1,000 feet. Many ordinances also require that dispensaries not be located within a similar
distance to residential uses and other dispensazies. State law requires that dispensaries not be
located within 600 feet of a school.
Staff has analyzed the effect of the separation requirement from sensitive uses upon the
availability of sites for dispensaries within Chula Vista. Because Chula Vista has residential uses
located throughout the City, very few areas would be available for dispensazies that would meet
a 600 to 1,000 foot separation requirement from residential uses. Areas that would be available
are located within certain industrial areas, which the Police Department has determined to have a
higher than average crime rate. If there were a separation requirement from sensitive uses other
than residential, then commercial areas along Broadway and Third Avenue, as well as
commercial areas in Eastern Chula Vista would be available for dispensaries. However, this
issue could be made moot by pending state legislation (described above) that would prohibit
dispensaries from being located 600 feet from residential zones or uses.
D. City Manager's Recommendation
In light of research that was presented by staff at the Public Safety Subcommittee hearings that
suggests medical marijuana dispensaries will present a material drain on City resources, pose
substantial risks for crime and disorder, and that reasonable alternatives exist for obtaining
medical marijuana, the City Manager recommended (and still recommends) as follows:
1. Do not permit medical marijuana dispensaries;
2. Do continue to allow conventional patient/cazegiver medical marijuana distribution;
3. Do continue to allow medical marijuana delivery service;
4. Staff will work to develop appropriate regulations for Items 2 and 3; and
5. If Council further considers medical marijuana dispensaries, further public outreach and
study would be necessary to evaluate the extent of community need, impact on
neighborhoods and whether or not there exists an acceptable model of operation with
matching, legally defensible regulations.
E. Public Safety Subcommittee Hearings and Recommendation
The Public Safety Subcommittee held two public heazin~s on the issue of medical
mazijuana; the first was held on May 18th; the second on June 15 Both were well attended.
Each hearing began with extensive presentations from legal, police and planning staff. Staff
presentations were followed by extensive public testimony and input from both residents and
outside interests. Most speakers made statements in support of some form of City-approval
process for medical marijuana distribution operations. Others spoke against. Ultimately, many
sides and perspectives on the issue of medical marijuana were presented.
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Those in favor spoke about the benefits of medical marijuana and the importance of
convenient local access, especially for the seriously ill. Some objected to staff presentations as
inaccurate or incomplete and suggested that the identified crime risks were either exaggerated or
no worse than other types of more common business operations. Medical marijuana industry
representatves (e.g., representatives from the organization Americans for Safe Access), talked
about (and provided) materials and sample regulations that were supportive of storefront type
distribution mechanisms. Some speakers also suggested that the availability of open and "legal"
access would reduce the amount of illegal drug activity. Others talked about the potential for the
City to tax this type of business and raise substantial revenue. The idea that "delivery service"
presented a reasonable alternative was challenged as more costly to patients, and an unfair "not
in my backyazd" approach.
Those opposed to medical marijuana businesses expressed concerns about the negative
impacts on public safety, neighborhoods and kids, with the suggestion that easier access to
medical marijuana might lead to increased recreational use. Others pointed out that state law
only decriminalized medical marijuana, it did not "legalize it" and that state law did not
contemplate the kinds of storefront operations now common in many cities. The ability of the
City to generate revenue was questioned, with the suggestion that the cost of regulations would
exceed revenues.
The City Manager's recommendation (described above) was presented to the Committee
as part of staffs presentation at the June 15th heazing. The Committee considered this
recommendation, public testimony, and their own personal considerations in developing a formal
committee recommendation for the City Council In their deliberations both Committee
members acknowledged and expressed sensitivity to the legitimate medical marijuana user
population. Both also expressed concerns about the proliferation of medical marijuana
"dispensaries" that appeazed to market to recreational users. Both expressed support for
continuing existing (if not "permitted") forms of access (i.e., traditional patient caregiver
settings, and delivery services based outside the City), but with appropriate regulations. They
also expressed an interest in exploring whether or not a storefront type operation that complied
with the AG guidelines could be identified and regulated. One particular operation in the City of
San Diego that both members had toured with a move "pharmacy-like" atmosphere was
identified as the kind of place that might be acceptable subject to further review and analysis.
F. Next Steps
If City Council accepts the Public Safety Subcommitee recommendation to prohibit the
operation of medical marijuana dispensaries (Recommendation No. 1), the City Attorney will
prepaze the appropriate ordinance(s) to implement same. Any required zoning ordinance would
first be presented to the Planning Commission at a noticed public hearing. The Planning
Commission's next scheduled meeting is on July 27th. Once acted upon by the Planning
Commission, the formal ordinance, with any Planning Commission's recommendation thereon,
would be presented to the City Council for final consideration. This could happen as early as
August 9th.
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Appropriate regulations for traditional "patient caregiver" operations identified in the
Health and Safety Code, and delivery services (Recommendations Nos. 2, 3 and 4) would be
developed over the next 6 to 9 months and also presented for City Council consideration.
Further consideration of MMJ "collectives" (Recommendation No. 5) could occur in a
number of ways. The Public Safety Subcommittee itself could continue to address the issue that
operate in accordance with the 2008 Attorney General's Guidelines by conducting further public
outreach and study to evaluate the extent of community need, impact on neighborhoods and
whether or not there exists an acceptable model of operation with matching, legally defensible
regulations. As an alternative, a separate ad hoc committee could be formed. If the committee
were comprised of less than a quorum of the City Council, with no outside members, this
committee could meet privately and publicly under applicable laws. Finally, staff could be
directed to implement the process on its own. The procedures and focus of any of these study
groups could be established by the City Council, or left to the assigned group itself. Staff
estimates 6 to 9 months would be needed to complete this process.
CURRENT YEAR FISCAL IMPACT
The primary "fiscal impact" of the work done to date on this matter has been the consumption of
a substantial amount of staff time, particularly in the City Attorney's office. Any direction to
further study regulations for "collectives" would consume substantial additional staff resources
in the City Attorney's office, Police Departrnent and Development Services. Staff demands
would be increased again by any conclusion that formal regulations should be developed,
implemented and enforced. Any fee structure or tax imposed on medical marijuana operations
may require a fee study performed by an outside consultant. The cost for this work is not known
at this time.
ONGOING FISCAL IMPACT
Unknown
ATTACHMENTS
Attachment A -Timeline of Medical Marijuana Legal Enactments and City Actions to Date
Attachment B -Matrix Comparing Attomey General Guidelines and Common Operations of
Medical Marijuana Dispensaries
Attachment C -Resolution Implementing Public Safety Subcommittee Recommendation
14-13
RESOLUTION NO. 2011-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA DIRECTING CITY STAFF TO IMPLEMENT
THE PUBLIC SAFETY SUBCOMMITTEE
RECOMMENDATION REGARDING MEDICAL
MARIJUANA DISPENSARIES AND RELATED POLICIES
WHEREAS, the City of Chula Vista has been monitoring and studying medical
mazijuana related issues for the past two years; and
WHEREAS, the Public Safety Subcommittee took up the this issue and held heazings to
receive City staff and public input on May 18a' and June 15a', 2011; and
WHEREAS, after consideration of staff input, the City Manager's recommendation,
input from the public, and their own deliberations, the Public Safety Subcommittee developed
and presented to City Council a recommendation on how to proceed regarding medical
marijuana dispensaries and related policies; and
WHEREAS, at the July 12`" City Council meeting, the City Council considered such
recommendation, and received and considered further staff and public input, including staff's
request for further direction.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista directs City Staff to:
1. Prepaze and process for final City Council consideration an ordinance (or ordinances) to
accomplish the following:
a. prohibit medical marijuana "dispensaries" (defined as storefront, commercial
retail operations) and similaz operations;
b. Continue to allow conventional patient/cazegiver medical marijuana distribution
(defined as a health clinic, a health care facility, a residential care facility for
persons with chronic, life-threatening illnesses, a licensed residential care facility
for the elderly, and/or a residential hospice or a home health agency as authorized
by Health & Safety Code Section 11362.7(d)(1));
c. Continue to allow medical marijuana delivery service;
2. Work to develop appropriate regulations for Items l.b and c; and
3. In accordance with a process and timeline established by City Council, further consider
MMJ "collectives" that operate in accordance with the 2008 Attorney General's
Guidelines by conducting further public outreach and study to evaluate the extent of
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Resolution No. 2011-
Page 2
community need, impact on neighborhoods and whether or not there exists an acceptable
model of operation with matching, legally defensible regulations.
Presented by:
Chance C. Hawkins
Deputy City Attorney
Approved as to form by:
en Goo ins
C Att ey
C \Documen¢ and Settings\cherylp\Local Settings\iempomry Imemev Files\OLK6\geso DM4] rec (2).doc
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ORDINANCE N0.2011-
ORDINANCE OF THE CITY OF CHULA VISTA ENACTING
MUNICIPAL CODE CHAPTER 5.66 (MEDICAL MARIJUANA
DISPENSARIES)
WHEREAS, in 1970, Congress enacted the Controlled Substances Act (CSA) which,
among other things, makes it illegal to import, manufacture, distribute, possess, or use marijuana
in the United States; and
WHEREAS, in 1996, the voters of the State of California approved Proposition 215,
known as the Compassionate Use Act ("CUA") (codified as Health and Safety ("H&S") Code
Section 11362.5 et seq.); and
WHEREAS, the CUA creates a limited exception from criminal liability for seriously ill
persons who are in need of medical marijuana for specified medical purposes and who obtain
and use medical marijuana under limited, specified circumstances; and
WHEREAS, on January 1, 2004, the "Medical Marijuana Program" ("MMP"), codified as
H&S Code Sections 11362.7 to 11362.83, was enacted by the State Legislature purporting to
clarify the scope of the Act and to allow cities and other governing bodies to adopt and enforce
rules and regulations consistent with the MMP; and
WHEREAS, the CUA expressly anticipates the enactment of additional local legislation,
and it provides: "Nothing in this section shall be construed to supersede legislation prohibiting
persons from engaging in conduct that endangers others, nor to condone the diversion of
marijuana for nonmedical purposes." (H&S Code section 11362.5); and
WHEREAS, the City Council takes legislative notice of the fact that several California
cities and counties, which have permitted the establishment of medical marijuana distribution
facilities or "dispensaries," have experienced serious adverse impacts associated with and
resulting from such uses; and
WHEREAS, according to these communities, widely-reported news stories, and medical
marijuana advocates, medical marijuana dispensaries have resulted in and/or caused an increase
in crime, including burglaries, robberies, violence, illegal sales of marijuana to, and use of
marijuana by minors and other persons without medical need in the areas immediately
surrounding such medical marijuana distribution facilities, and
WHEREAS, the City Council reasonably anticipates that the City of Chula Vista will
experience similar adverse impacts and effects; and
WHEREAS, a California Police Chiefs' Association compilation of police reports, news
stories, and statistical research regarding such secondary impacts is contained in a 2009 white
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Ordinance No.
Page 2
paper report located at: http://www.proton.org/sourcefiles/CAPCAWhitePaperonMarijuana
Dispensaries.pdf; and
WHEREAS, the City Council further takes legislative notice that as of December 2010,
according to at least one compilation, 103 cities and 14 counties in California have adopted
moratoria or interim ordinances prohibiting medical marijuana dispensaries; and
WHEREAS, the City Council further takes legislative notice that at least 139 cities and
11 counties have adopted prohibitions against medical marijuana dispensaries; and
WHEREAS, the compilation is available at: http://www.safeaccess
now.org/article.php?id=3165; and
WHEREAS, the City Council further takes legislative notice that the California Attorney
General has adopted guidelines for the interpretation and implementation of the state's medical
marijuana laws, entitled "GUIDELINES FOR THE SECURITY AND NON-DIVERSION OF
MARIJUANA GROWN FOR MEDICAL USE (August 2008)" (http://aa.ca.gov/cros
attachments/press/pdfs/n1601 medicalmariiuana~uidelines.ydf); and
WHEREAS, the Attorney General has stated in the guidelines that "[a]lthough medical
marijuana'dispensaries' have been operating in California for years, dispensaries, as such, are not
recognized under the law"; and
WHEREAS, the City Council further takes legislative notice that the experience of other
cities has been that many medical marijuana distribution facilities or "dispensaries" do not
operate as true cooperatives or collectives in compliance with the MMP and the Attorney
General Guidelines; therefore, these businesses are engaged in cultivation, distribution and sale
of marijuana in a manner that remains illegal under both California and federal law. As a result,
of such illegal activity, the City would be obligated to commit substantial resources to regulating
and overseeing the operation of medical marijuana distribution facilities to ensure that the
facilities operate lawfully and are not fronts for illegal drug trafficking. Additionally, it is
uncertain whether even with the dedication of significant resources to the problem, the City
would be able to prevent illegal conduct associated with medical marijuana distribution facilities,
such as illegal cultivation, transport of marijuana, and the distribution of marijuana between
persons who are not qualified patients or caregivers under the CUA and MMP; and
WHEREAS, the City Council further takes legislative notice that concerns about
nonmedical marijuana use arising in connection with the CUA and the MMP also have been
recognized by state and federal courts. (See, e.g., Bearman v. California Medical Bd. (2009) 176
Cal. App. 4th 1588; People ex rel. Lungren v. Peron (1997) 59 Cal. App. 4th 1383, 13861387;
Gonzales v. Raich (2005) 545 U.S. 1); and
WHEREAS, the City Council further takes legislative notice that the use, possession,
distribution, and sale of marijuana remain illegal under the federal Controlled Substances Act
("CSA") (Bearman v. California Medical Bd. (2009) 176 Cal. App. 4th 1588); that the federal
courts have recognized that despite California's CUA and MMP, marijuana is deemed to have no
14-17
Ordinance No.
Page 3
accepted medical use (Gonzales v. Raich, 545 U.S. 1; United States v. Oakland Cannabis Buyers'
Cooperative (2001) 532 U.S. 483); that medical necessity has been ruled not to be a defense to
prosecution under the CSA (United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S.
483); and that the federal government properly may enforce the CSA despite the CUA and MMP
(Gonzales v. Raich, 545 U.S. 1); and
WHEREAS, the City Council has been concerned about the adverse effects associated
with medical marijuana dispensaries, has discussed such effects, has adopted an interim urgency
ordinance that established a moratorium on the legal establishment and operation of medical
marijuana dispensaries on July 21, 2009, and has extended it twice pursuant to applicable law on
September 1, 2009, and June 22, 2010, which ordinances are incorporated by reference and
relied upon in approving this Ordinance; and
WHEREAS, the City of Public Safety Subcommittee held public hearings on medical
marijuana with significant public input and commentary on May 18th and June 15th, 2011, and
subsequently made a recommendation to the City Council on July 15, 2011; and
WHEREAS, the City Council by a majority vote adopted a resolution which directed
staff to take appropriate action to expressly prohibit medical marijuana dispensaries on July 15,
2011; and
WHEREAS, an ordinance prohibiting medical marijuana dispensazies and prohibiting the
issuance of any permits or entitlements for medical marijuana dispensaries is necessary and
appropriate to maintain and protect the public health, safety and welfaze of the citizens of Chula
Vista; and
WHEREAS, the City Council is mindful of the needs of medical mazijuana patients and
has crafted this Ordinance in a manner that does not interfere with a patient's ability to produce
his or her own medical marijuana or to obtain medical mazijuana from a primary caregiver as
expressly allowed under applicable State law; and
WHEREAS, the City Council finds, pursuant to Title 14 of the California Code of
Regulations, Section 15061(b)(3), that this Ordinance is exempt from the requirements of the
California Environmental Quality Act ("CEQA") in that it can be seen with certainty that there is
no possibility that the activity in question may have a significant effect on the environment; and
NOW, THEREFORE, the City Council of the City of Chula Vista does, hereby, ordain as
follows:
SECTION I. The above-listed findings are true and correct.
SECTION II. Chapter 5.66 (Medical Mazijuana Dispensaries) is added to the Chula Vista
Municipal Code to read as follows:
Chapter 5.66
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Ordinance No.
Page 4
MEDICAL MARIJUANA DISPENSARIES
Sections:
5.66.010 Definitions.
5.66.020 Operation of medical marijuana dispensaries prohibited.
5.66.030 Violation-Penalty.
5.66.040 Public nuisance.
5.66.010 Definitions.
"Medical marijuana dispensary" is any fixed facility or location where, under the purported
authority of California Health and Safety Code Section 11362.5 et seq. or otherwise, marijuana is
cultivated, made available, sold, transmitted, distributed, given or otherwise provided to, by, or
among three or more persons for medical purposes.
"Medical marijuana dispensary" shall not include the following uses, so long as such uses
comply with this code, Health and Safety Code Section 11362.5 et seq., and other applicable
law:
1. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code.
2. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety
Code.
3. A residential care facility for persons with chronic life-threatening illness licensed pursuant to
Chapter 3.01 of Division 2 of the Health and Safety Code.
4. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the
Health and Safety Code.
5. A hospice or a home health agency, licensed pursuant to Chapter 8 of Division 2 of the Health
and Safety Code.
"Persons" shall include any individual or entity regardless of status as a qualified patient or
primary caregiver.
"Primary Caregiver" shall be defined in the same manner as such term is defined in California
Health and Safety Code Section 11362.5
"Qualified Patient" shall be defined as any individual who obtains and uses marijuana for
medical purposes upon the recommendation of a physician.
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Ordinance No.
Page 5
5.66.020 Operation of medical marijuana dispensaries prohibited..
A. The operation of a medical marijuana dispensary, as defined in this chapter, is prohibited in
the City of Chula Vista, and no person or association of persons, however formed, shall operate
or locate a medical marijuana dispensary in the City. The City shall not issue, approve, or grant
any permit, license or other entitlement for the establishment or operation of a medical marijuana
dispensary in the City of Chula Vista.
B. This Chapter does not apply where preempted by state or federal law.
5.66.030 Violation -Penalty.
Any person found to be in violation of any provision of this chapter shall not be subject to the
criminal enforcement remedies set forth in Chapter 1.20, Chapter 1.24 or any other criminal law
violation and enforcement provision set forth in this Code, as a result of such violation.
5.66.040 Public nuisance.
Any use or condition caused or permitted to exist in violation of any of the provisions of this
chapter shall be, and is hereby declared, a public nuisance, which may be abated by the city
pursuant to the procedures set forth in this Code, and be subject to any associated civil remedies.
SECTION III. EFFECTIVE DATE.
This ordinance will take effect and be in full force on the thirtieth day from and after its
adoption.
Approved as to form by
~Z
s'
Gen ogins
Ci Atto
14-20