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HomeMy WebLinkAboutOrd 2009-3134-AURGENCY ORDINANCE NO. 3134-A URGENCY ORDINANCE OF THE CITY OF CHULA VISTA PLACING A MORATORIUM ON THE LEGAL ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES WITHIN THE CITY OF CHULA VISTA WHEREAS, in 1996, California voters approved the Compassionate Use Act (CUA), which allows a patient or a patient's primary care giver to possess or cultivate marijuana for persona] medical purposes; and WHEREAS, the intent of the CUA is to allow seriously ill persons to cultivate and possess a sufficient amount of mazijuana for their own approved medical purposes, and to allow primary care givers the same authority to act on behalf of those patients too ill to do so; and WHEREAS, thereafter, the Legislature of the State of California enacted Senate Bill 420 (the "Medical Marijuana Program"), codified as California Health and Safety Code § 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 qualified patient or a primary cazegiver with a valid identification card for the possession, transportation, delivery, or cultivation of medical marijuana; and WHEREAS, one purpose of the CUA and the Medical Mazijuana Program is to encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of mazijuana to all patients in medical need of mazijuana; and WHEREAS, neither the federal nor the state government has implemented a specific plan to provide for the safe and affordable distribution of mazijuana to all patients in medical need of marijuana, leaving cities with a lack of direction about how the CUA is intended to be implemented, particularly in regazd to distribution of medical marijuana through dispensaries; and WHEREAS, medical mazijuana dispensaries have been established in some locations in California, and as a consequence, local agencies have reported negative secondary effects on the community, including, illegal drug 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 have obtained marijuana from a dispensary; persons acquiring mazijuana from a dispensary and then selling it to anon-qualified person; burglazies and robberies; and an increase in vacancies in the commercial areas in the vicinity of such businesses; and WHEREAS, the California Police Chiefs Association has compiled an extensive report detailing with the negative secondary effects associated with medical marijuana dispensazies; and Urgency Ordinance No. 3134-A Page 2 WHEREAS, a conflict exists between federal and state law as to the legality of marijuana for medical purposes and the interpretation of state law concerning whether cities may prohibit the establishment of medical marijuana dispensaries; and WHEREAS, this conflict is demonstrated in the pending case of Qualified Patients Association v. City of Anaheim; and mazijuana dispensaries on the basis that the ban contravenes the CUA, the Medical Marijuana Program, and violates Civil Code Section 51 ("Unruh Civil Rights Act"); and WHEREAS, the medical marijuana group's argument is that they aze a "primazy caze giver" under the Compassionate Use Act and are allowed to operate medical mazijuana dispensaries, whereas the City of Anaheim argues that the sale of marijuana is illegal under federal law and states do not have the authority to ovemde federal law, and a dispensary is not a "primary cazegiver" under the state law; therefore, the medical mazijuana group is prohibited under federal and state law from dispensing an illegal drug and Anaheim's Ordinance should be upheld; and WHEREAS, the City of Anaheim prevailed in the Orange County Superior Court, and Qualified Patients Association appealed; the case is now pending in the California 4~h District Court of Appeals; and WHEREAS, California cities expect that, with the currently pending appeal of Qualified Patients Association v. Ciry of Anaheim, the Courts will settle this conflict in late 2009, or at least shed some guidance on the issue of banning marijuana dispensaries so cities will better understand how to proceed and enact planning regulations; and WHEREAS, the City of Chula Vista has not adopted rules and regulations specifically applicable to the establishment and operation of medical marijuana dispensaries and the lack of such 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 neaz such businesses, and the patients or clients of such establishments; and WHEREAS, the establishment of medical marijuana dispensaries before appropriate procedures and regulations aze enacted has the potential to cause adverse impacts to surrounding development and risks to the public health, safety, and welfaze 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 or prohibited in the City and, if so allowed, to develop regulations governing the location and operation of medical mazijuana dispensazies to prevent adverse impacts to the public health, safety and welfare that may result from unregulated placement and operation of such uses; and WHEREAS, the City intends to undertake a study of whether medical mazijuana dispensazies should be permitted, and if so permitted, the appropriate regulations for such uses, within a reasonable time; and Urgency Ordinance 3134-A Page 3 WHEREAS, given the time required to undertake the necessazy study and planning, it is necessary that this interim 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 regazding the establishment and operation of medical marijuana dispensaries, it is reasonable to conclude that negative effects on the public health, safety, and welfare may occur in the City as a result of the proliferation of medical marijuana dispensaries and the lack of appropriate regulations governing the establishment and operation of such facilities; and WHEREAS, the City Council now desires to adopt this interim Ordinance as an urgency ordinance, effective immediately, and prohibit the establishment of medical marijuana dispensaries, as defined hereafter, in any zone of the City of Chula Vista pursuant to the authority set forth in California Government Code Section 65858. NOW, THEREFORE, BE IT ORDAINED that the City Council of the City of Chula Vista does as follows: SECTION 1. The City Council finds that the facts set forth in the Recitals of this Ordinance are true and correct. SECTION 2. For purposes of this Ordinance, "medical mazijuana 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 terms are identified in strict accordance with California 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 1 Division 2 of the Health and Safety Code, a healthcaze facility licensed pursuant to Chapter 2 Division 2 of the Health and Safety Code, a facility licensed pursuant to Chapter 2 Division2 of the Health and Safety Code, a residential caze 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 Chapter 8 of 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 permitted use. No permits or authorizations for a medical marijuana dispensary shall continue to be issued while this Ordinance is in effect. Urgency Ordinance No.3134-A Page 4 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 California Code of 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 15378) 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 governing such uses, and/or prohibition of such uses and develop zoning and licensing guidelines if that is appropriate or authorized by law and desired by the City Council. SECTION 6. The City Council declazes this Ordinance is necessary as an urgency measure to preserve and address existing and immediate threats to the public health, safety, and welfaze. This interim urgency Ordinance is adopted pursuant to Section 65858 of the California Government Code. SECTION 7. Effective Date. This Ordinance is hereby declazed 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-fifths (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. This 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 any 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 Ordinance. The City Council hereby declazes that it would have passed this Ordinance and adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one of more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 10. Certification. 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 prepazed in accordance with Government Code Section 36933, to be published one time within 15 days of its passage in a newspaper of general circulation, printed and published in the City of Chula Vista. Presented by -^ ` Chance C. Hawkrns Deputy City Attorney Approved as to form by B . Miesfel City Attorney Urgency Ordinance 3134-A Page 5 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 21st day of July 2009, by the following vote: AYES: Councilmembers: Bensoussan, Castaneda, Ramirez, and Cox NAYS: Councilmembers: None ABSENT: Councilmembers: McCann V ~ Cheryl Cox, o ATTEST: ~ ~.,~ ;~ - Donna R. Norris, CM ,City Clerk STATE OF CALIFORNIA COUNTY OF SAN DIEGO CITY OF CHULA VISTA I, Donna R. Norris, City Clerk of Chula Vista, California, do hereby certify that the foregoing Urgency Ordinance No. 3134-A, was duly published in summary form in accordance with the requirements of state law and the City Charter. Executed this 21st day of July 2009. ~U>t-tom<t ~ ~ il~J~}ctA Donna R. Norris, CMC, City Clerk