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HomeMy WebLinkAbout2009/07/21 Item 8 CITY COUNCIL AGENDA STATEMENT '\11-- :$: <::: CITY OF '-~ (HULA VISTA JUL Y 21, 2009, Item~_ ITEM TITLE: ADOPTION OF AN INTERIM URGENCY ORDINANCE PLACING A MORATORIUM ON THE LEGAL EST ABUSHMENT AND OPERA nON OF MEDICAL MARIJUANA DrSPENSARlES WITHIN THE CITY OF CHULA VISTA CITY ATTORNEY'S OFF1CESc.V"- CITY ATTORNEY'S OFFICE 7,5'0-/ SUBMITTED BY: REVIEWED BY: 4/5THS VOTE: YES I X I NO D SUMMARY Califomia Government Code California Government Code Section 65858 permits a city to adopt an intenm urgency ordinance to protect the public safety, health, and welfare, and prohibiting any uses that may be in conf1lct with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or Intends to study withm a reasonable time. Adoption of tbe interim ordinance does not require a public hearing; however, it requires a four-fifths vote by the City Council. It' adopted, the moratorium becomes effective immediately and lasts for 45 days. Existing City codes, including the Zoning Code, imphcitly prohibits the establishment of medical marijuana dispensaries. California case law provides for the position that if a use is not specifically addressed by a zoning ordinance it is prohibited. Moreover, because marijuana use and possession is illegal under federal law, the dispensing nf manjuana, medical or not. is an "unlawful trade" prohibited by CYMC 5.02.200. The opcl'ation of medical marijuana dispensaries and the lack of express regulation concernmg location,' establlshlllCllI or operatioli may lead to a proliferation of dispensaries and the inability of the City to l'egulate these establishments In a manner that will protect the general public, homes, and businesses adjacent to and near such buslllesses, and the patients or clients of such establishments. In additIOn, based on the adverse secondary Illlpacts experienced by other cities and the lack of an express regulatory program in the City regarding the operation of medical marijuana dispensaries, it is reasonable to conclude that negative effects on the public 8-1 JULY 21, 2009, Item~ Page20f5 health, safety, and welfare may occur in the City as a result of the proliferation of medical marijuana dispensaries. The establishment of medical marijuana dispensaries before appropriate procedures and regulations are enacted has the potential to cause adverse impacts to surrounding development and risks to the public health, safety, and welfare of the City's residents and the general public and it is, therefore, urgent that the City have the opportunity to consider whether such facilities should be allowed in the City and, if so allowed, to develop regulations goveming the location and operation of medical marijuana dIspensaries to prevent adverse impacts to the publiC health, safety and welfare. The intel'im urgency Ordinance bans medical marijuana dispensaries whlle the City studies whether medical mal'ijuana dispensaries expressly should be pellllitted and if so permitted, the appropriate regulations for such uses, within a reasonable time. Given the time required to undertake the necessary study and planning, it is necessary that this interim urgency Ordll1ance be ll11mediately enacted to ensure that no medical marijuana dispensaries that may be in conflict with any state or tederal law, or the City's general plan, zoning, and/or development policies are penllitted in the interim. ENVIRONMENTAL REVIEW This proposed activity has been reviewed for compliance with the California Environmental Quality Act (CEA W) and it has been detenllined that the activity is not a "Project" as defined under Section 15378 of the state CEAQ Guidelines because it will not result in a physical chance 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. RECOMMENDATION AdoptIon of an interim urgency ordinance placing a moratorium on the legal establishment and operation ofmedica\ marijuana dispensaries. 2. Direct the staff to study the applIcable legal and land use issues and develop appropriate zoning and licensing guidelines or regulations goveming such uses, and/or prohibitIon of such uses if that IS authorized by law and desired by the Council. BOARDS/COMMISSION RECOMMENDATION N/A DISCUSSION Compassionate Use Act and the Medical Mariluana Program in 19%, Colifol11ia voters approved the Compassionate Use Act ("CUA"), which allows a patient or a patIent's primary caregiver to possess or cultivate marijuana for personal medical purposes. The intent of the CUA is to allow seriously ill persons to cultivate and possess a sufficient amount of marijuana for their own approved 8-2 JULY 21, 2009, !tem~ Page 3 of5 medlc"l purposes. and to allow primary caregivers the same authonty to act on behalf of those patients too ill to do so. In January 2004, the Legislature of the State of Califomia enacted Senate Bill 420 (the "Medical Marijuana Program"). coditied as California Health and Safety Code S 11362.7 et seq., which requires the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification Girds to qualified patients and primary caregivers, and prohibIts the arrest of a qualified patient or a primary caregiver with a valid identification card for the possession, transportation, delivery, or cultivation of medical marijuan". One purpose of the CUA and the Medical Marijuana Program is "to encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of manjuana to all patients in medical need of marijuana." Neither the federal nor the state government has implemented a specitic plan "to provide tar the safe and affordable distribution of manjuana to all patients in medical need of marijuana," leaving cities with a lack of direction about how the CUA is intended to be implemented, paliicularly 1\1 regard to distribution of medical marijuana through dispensaries. Medical Maniuana under Federal Law Medical Imrijuana is not recognized under federal law, whIch prohibits the manufacture, sale, and distribution ofmarijuancl. In addition, possession of marijuana is illegal, and there is no medical necessity defense to federal criminal violations. The main goveming federal statute is the Controlled Substances Act ("CSA"). The goal of enacting the CSA was to combat the recreational dmg abuse and curb drug trafficking. The CSA categorizes all controlled substances into five schedules based on their accepted medical uses, the potential for abuse, and the psychological effects on the body. Marijuana is classified as a "Schedule I" dmg, which means it has a high potential for abuse. As a result the manufacture, distribution, or possession of marijuana is a criminal offense c1l1d the ClIA and Medical Manjuana Program do not exempt marijuana manufacture, sale, possession, and distnbution from prosecution under federal law. Oualified Patiellls AssociatIOn v. Citv of Anaheim As indicated above, a conflict exists between federal and state law as to the legality of marijuana tar medical puq.Joses and the interpretation of state law concerning whether cities may prohibit the establishment of medical marijuana dispensaries. This contlict is demonstrated in the pending case of Qualified Patients Association v City 01' Anaheim. In thiS case, a medical manjuana group consisting of approximately 50 members has challenged the City of Anaheim's ban against medical marijuana dispensaries on the basis that the ban contravenes the ClIA, the Medical Marijuana Program, and violates Civil Code Section 51 ("Unruh Civil Rights Act"). The medical marijuana group's argument is that they are a "primary caregiver" under the ClIA and are allowed to operate medicalmanjuana dispensanes. The City of Anaheim argues that the sale of maruuana is illegal under federal law, states do not have the authority to override federal law, and a dispensary is not a "primary caregiver" under the state law; therefore, the medical marijuana group is prohibited under federal and state law from dispensing an illegal drug and Anaheim's ordinance should be upheld. The City of Anaheim prevailed in the Orange County Superior Court, and Qualified Patients Association appealed The case is now pending in the Calitarnia 4th District Court of Appeals, with oral argument set tar September. It is expected that the Courts will settle this cont1ict in late 2009, or at least shed some guidance on the Issue of banning marijuana dispensanes so cities will better understand how to proceed and enact plannil1g regulations. 8-3 mLY 21, 2009, Item~ Page40f5 Medical tvbl'iiuana Dispensaries and Secondary Effects Medical marijuana dispensaries have been established in numerous locations in California, and as a consequence, local agencies have reported negative secondary effects on the community, including, illegal drug acti vity and drug sales 111 the vicinity of dispensaries; robbery of persons leaving dispensaries; driving under the influence of a controlled substance by persons who have obtained marijuana from a dispensary; persons acqUiring manjuana from a dispensary and then selling it to a non-qualified person; burglaries and robberies; and an increase in vacancies in the commercial areas in the vicinity of such businesses. The California Police Chiefs Association has compiled an extensive repol1 detailing the negative secondary effects associated with medical marijuana dispensaries. Other Cllles Local govel11ments have approached the issue of medical marijuana dispensaries in several ways. Some jurisdictions have adopted ordinances that set forth regulations governing the number, location, or operating standards for these businesses. The City of Oakland permits the establishment of medical marijuana dispensaries, but limits the total number. In addition, 111 Oakland there will be a special election on July 21, 2009, in which one of the four proposed measures is to institute a new tax on medical marijuana dispensaries ($ I S for every $1,000 of business sales). The City of Martinez has an ordll1ance that pe1111its and regulates medical mariJuana dispensaries within identified commercial distncts, In contrast, while the City of San Diego has an ordinance that allows adult marijuana patients with the approval of a San Diego County doctor to keep up to 1 pound of marijuana and grow up to 24 plants, and permits primary caregivers to keep up to 2 pounds of marijuana and grow up to 48 plants for as many as four patients, it has not adopted an ordinance conceming medical marijuana dispensaries. There are other cities that have prohibited the establishment of medical marijuana dispensanes. These cities Include, but are not limited to, Anaheim, Manhattan Beach, Temecula, Santa Ana, Mlmieta, Redondo Bench, Costa Ivlesa, and Corona. Roughly 100 California cities have adopted temporary or pennanent bans. In addition, the County of San Diego has recently voted to draft an ordll1ance making for-profit, medical marijuana dispensaries illegal in the unincorporated areas of the county. Several cities have adopted zoning moratoriums that prevent establishment of medical marijuana dispensaries pending further study in determination of whether and how they will regulate these facilities. Examples of some of these cities with moratoriums are: City of Monterey Park, Hemet, Santa Cmz, Laguna Beach, and Oceanside. Lastly, other jurisdictions, such as Vista and Fresno, have relied on theIr existing Development Code and/or Municipal Code to prohibit marijuana related land uses without passing additional regulations. Current Inquines and Business License Applications Staff has received Inquiries from medical marijuana providers interested in establishing medical marijuana dispensaries Currently, the Chula Vista Zoning Code does not expressly authorize such uses. Furthermore, selling medical marijuana is an "unlawful trade" under federal law, and therefore medical marijuana dispensaries are implicitly prohibited. 8-4 JULY 21, 2009, Item~ Page 5 of5 DECISION MAKER CONFLICT StarT has reviewed the declsion contemplated by this action and has detennined that it is not site specific and conseqllently the 500 foot rule found in Califol11ia Code of Regulations section IS704.2(a)( 1) is not appltcable to this decision. CURRENT YEAR FISCAL IMPACT The temporary ban results in no fiscal impact cUlTently. ONGOING FISCAL IMPACT The temporary han results in no fiscal impact clllTently ATTACHMENTS None rreporr.:cI hI'" ChuJ7I.:1:! C HU1I'!{/!1S, Depllfy Cify rlttorney. City Attorney's Office 8-5 ORDfNANCE NO 2009- AN ORDrNANCE ADOPTED AS AN URGENCY MEASURE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, TO PLACE A MORATORIUM ON THE LEGAL EST ABLISHMENT Ai'.'D OPERATION OF MEDICAL MARIJUANA orSPENSARIES WITHrN THE CITY OF CHULA VISTA WHEREAS, in 1996, California voters approved the Compassionate Use Act ("CUA"), which allows a patient or a patient's pnmary care giver to possess or cultivate marijuana for personal medical purposes; and WHEREAS, the intent of the CUA is to allow seriously ill persons to cultivate and possess a sufficient amount of mariJllQna for their own approved medical purposes, and to allow pri mary care givers the same authonty to act on behalf of those patients too ill to do so; and WHEREAS, thereafter, the Legislature of the State of Califomia enacted Senate Bill 420 (the "Medical Marijuana Program"), coditied as Caltfornia Health and Safety Code S 11362.7 et seq., which requires the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients and primary care givers, and prohibits the arrest of a qualitied patient or a pnmary caregiver with a valid Identification card for the possession, transportation, delivery, or cultivation of medical Illarij Llana; and WHEREAS, one purpose of the CUA and the Medical Marijuana Program is "[tJo encourage the federal and state governments to implement a plan to provide for the safe and aFrordable distnbution of marijuana to all patients in medical need of marijuana;" and WHEREAS, neither the federal nor the state government has implemented a specific plan "to provide tor the safe and affordable distribution of man juan a to all patients in medical need of marijuana," leaving cities with a lack of direction about how the CUA is intended to be Imp lcmented, particularly in regard to distribution of medical marijuana through dispensalies; anel WHEREAS, medical marijuana dispensaries have been established in some locations in Call rornia, and as a consequence, local agencies have reported negative secondary effects on the commul1lty, including, illegal dntg activity and drug sales in the vicinity of dispensaries; robbery of persons leaving dispensaries; driving under the influence of a controlled substance by persons who bave obtained marijuana from a dispensary; persons acquiring marijuana from a dispensary and then selling It to a non-qualified person; burglaries and robberies; and an increase in vacancies in the commercial areas in the Vicinity of such businesses; and 8-6 O,-dlllance 2009- Page 2 WHEREAS, the California Police Chiefs Association has comp,led an extensive report detailing with the negative secondary effects associated with medical marijuana dispensaries; and WHEREAS, a conflict exists between federal and state law as to the legality of marijuana for medical putvoses and the interpretation of state law concerning whether cities may prohibit the establishment of med,cal marijuana dispensaries; and WHEREAS, this conflict is demonstrated in the pending case of Qualified Pat,enls !/sSIJcwliol/ v. Cilv of AI/aheim: and marijuana dispensaries on the basis that the ban contravenes the CUA, the Med,cal Marijuana Program, and violates Civil Code Section 51 ("Unruh Civil Rights Act"), and WHEREAS, the medical marijuana group's argument is that they are a "primary care gIver" under the Compassionate Use Act and are allowed to operate medical marijuana dispensaries. whereas the City of Anaheim argues that the sale of marijuana is illegal under federal law and states do not have the autho,-ity to ovelTide federal law, and a dispensary is not a "primary caregiver" under the state law; therefore, the medical marijuana group is prohibited Linder federal and state law from dispensing an illegal drug and Anaheim's Ordinance should be upheld; and WHEREAS, the City of Anahell11 prevailed in the Orange County Superior Court, and Qualified Patients Association appealed; the case is now pending in the California 4'h DIstrict COLIn of Appeals; and WHEREAS, California cities expect that, with the currently pending appeal of Qualified Palicl/ts Associatiol/ v. Cilv of Anaheim, the COl1l1s will settle this conflict in late 2009, or at least shed some guidance on the issue of banning marijuana dispensaries so cities will better L1nderstand how to proceed and enact planning regulations; and WHEREAS, the City of Chula Vista has not adopted mles and regulations specifically applicable to the establishment and operatIon of rnedicalmarijuana dispensaries and the lack of sLlch controls may lead to a proliferation of dispensaries and the inability of the City to regulate these establIshments in a manner that will protect the general public, homes, and businesses adjacent to and near sLlch businesses, and the patients or chents of such establishments, and WHEREAS, the establishment of medIcal marijuana dispensaries before appropriate procedures and regulatiol1s are enacted has the potential to cause adverse impacts to slJn'ollndmg development and risks to the public health, safety, and welfare of the City's residents and the general publIC and it is, therefore, urgent that the City have the opporhmity to consider whether sllch faciltties should be allowed ot' prohibited in the City and, if so allowed, to develop regulations governIng the location and operatlOn of medical marijuana dispensaries to prevent 8-7 Ordinance 2009- Page] adverse Impacts to the public health, safety and welfare that may result from unregulated pldccment and operation of such uses; and WHEREAS, the City intends to undertake a study of whether medical marijuana dispellsaries should be pernlitted, and if so pel1TIltted, the appropriate regulations for such uses, within a reasonable time; and, WHEREAS, given the time required to undertake the necessary study and planning, it is necessary that this ll1tenm Ordinance be Immediately enacted to ensure that no medical marijuana dispensaries that may be In conflict with any state or federal law, or the City's general plan, zoning, and/or development policies are permitted in the interim; and WHEREAS, based on the adverse secondary impacts experienced by other cities and the lack of any regulatory program in the City regardll1g the establishment and operation of medical manjuana dispensaries, it is reasonable to conclude that negative effects on the public health, salety, dnd welfare may occur in the City as a result of the proliferation of medical marijuana dispensaries and the lack of appropl'iate regulations governing the establishment and operation of sllch facilities; and WHEREAS, the City Council now desires to adopt this interim Ordinance as an urgency orclinance, effective immediately, and prohIbit the establishment of medical manjuana dispensaries, as defined hereafter, In any zone of the City of Chula Vista pursuant to the dllthonty set forth in Califomia Govemment Code Section 65858, The City COLll1cil of the City of Chula Vista, California, DOES HEREBY ORDAIN as follows. SECTION I. The City COllncil finds that the facts set,forth in the Recitals of tl1\S Ord Illance are trlle and con'ect. SECTION 2. For purposes of this Ordinance, "medical marijuana dispensary" or "dispensary" means any facility or location, whether fixed or mobile, where medical marijuana is made available to or distributed by or distributed to one (1) or more of the following: a primary caregiver, a qualified patient, or a patient with an identification card, All three of these teons are identified in stnct accordance with Cali fomia Health and Safety Code Section 11362.5 et seq. A "medical mariJuana dispensary" shall not include the following uses, as long as the location of such uses is otherwise regulated by this code or applicable .law, a clinic licensed pursuant to Chapter I DiviSIOn' 2 of the Health and Safety Code, a healthcare facility licensed pursuant to Chapter 2 Division 2 of the Health and Safety Code, a facility licensed pmsuant to Chapter 2 Dlvision2 of the Health and Safety Code, a residential care facility for persons with chronic life- threatening illnesses licensed pursuant to Chapter 3,01 of DiviSIOn 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of DIvision 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to 8-8 Ordinance 2009-_ Page 4 Chapter Sot' Division 2 of the Health and Safety Code, as long as such use complies strictly with applicable law, including but not limited to, Health and Safety Code Section 11362.5 et seq. SECTION 3. There is a current and immediate threat to the health, safety and welfare of the citizens of the City of Chula Vista if a medical marijuana dispensary locates in the City prior to the completion of the comprehensive report addressing appropriate rules and regulations of same. For the period of this Ordinance a medical marijuana dispensary shall be considered a prohibited use in any zoning district of the City, even if located within an otherwise pell11itted use No pemlits or authorizations for a medical marijuana dispensary shall continue to be issued while this Ordinance is in effect. SECTION 4. The City Council finds that this Ordinance is not subject to environmental reView under the California Environmental Quality Act pursuant to Title 14 of the Caltfornia Code ot' Regulations (CEQA Guidelines) Section 15060(c)(2) (the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment) and Section 15060(c)(3) (the activity IS not a project as defined in Section 1537S) because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 5. City staff is directed to study the applicable legal and land regulations gC1l't'ming such uses, and/or prohibition of such uses if that is use issues and develop appropriate Wiling and licensing guidelines or authorized by law and desired by the City COLmci!. SECTION 6 The City Council declares this Ordinance is necessary as an urgency measme to preserve and address existing and immediate threats to the public health, safety, and welfare. This interim urgency Ordll1ance is adopted pursuant to Section 65858 of the California Govemment Code. SECTION 7. Effective Date. This Ordll1ance is hereby declared to be an urgency measure pursuant to Government Code Section 36937, and shall take effect immediately upon its adoption. The City Clerk shall certify passage and adoption of the Ordinance by not less than a four-tifths (4/5) vote of the City Council, and shall make a minute of the passage and adoption in the records of the proceedings of the City Council at which thIS Ordinance is passed and adopted. SECTION 8. Expiration. TI115 Ordinance shall be of no further force or effect upon the expiration of forty-five (45) days from the date of adoption, unless extended in accordance With Government Code Section 65858. SECTION 9. Severability. If any section, sentence, clause, or phrase of this Ordinance is for ,lilY reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordll1ance. The City Council hereby declares that it would have passed this Ordinance and adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the 8-9 Ordinance 2009-_ Page 5 bct that anyone of more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 10. Celiification. That the City Clerk is hereby directed to certify to the passage of this Ordinance and to cause the same or a summary to be prepared in accordance with Go\el"l1ll1ent Code Section 36933, to be published one time within 15 days of its passage in a ne\vspaper of general circulation, printed and published in the City of Chula Vista. Presented by Approved as to fotTn by ~C<:~ '/ Deputy City Attorney Bart C. Miesfeld City Attorney 8-10