HomeMy WebLinkAbout2010/06/22 Item 15
CITY COUNCIL
AGENDA STATEMENT
~(f~ CITY OF
~ (HULA VISTA
JUNE 22, 20 I 0 Item / [;'
SUBMITTED BY:
REVIEWED BY:
EXTENSION OF AN INTERIM URGENCY
ORDINANCE OF THE COUNCIL OF THE CITY OF
CHULA VISTA EXTENDING A MORATORIUM ON
THE LEGAL ESTABLISHMENT AND OPERATION
OF MEDICAL MARIJUANA DISPENSARIES AND
COOPERATIVES WITHIN THE CITY OF CHULA
VISTA
CITY ATTORNEY'S OFFIC~t1--
CITY ATTORNEY'S OFFICE (!tfiL
ITEM TITLE:
4/STHS VOTE: YES I X I NO D
SUMMARY
At its mceting on July 21, 2009, thc Council adopteu an interim urgency ordinance by a vote of 4-0 establishing
an interim urgency ordinance placing a 45-uay moratorium on the legal establishment and operation of medical
marijuana dispensarIes I in Chula Vista. The interim urgency ordinance was passeu to protect the public safety,
health and welfare of Chula Vista and because medical marIjuana organizations conflIcted with the General
Plan.
On Septembcr 1, 2009, the intcrim urgency ordinance was extended for 10 months and 15 uays which is the
tirst standard extension authorizcd by Govemment Code 65858. The urgency oruinance is sct to expire on July
6th unless otherwise extendeu by this Council.
Staff is now requesting that thc Council approve the final extension of the moratorium for an auuitional 12
months per Govemment Code 65858. Under Government Code 65858 only 2 extensions of the intcrim urgency
ordmance are permitted; the first extension for 10 months and 15 uays, and the second extension for 12 months.
No other form of extension is pennitted under Government Coue !i5858.
I The \vnrd "dispensaries" docs not appear in California's medical marijuana statutes, and is often llsed to describe a variety of
operations related to distributing medical marijuana, which mayor may not comply with state law Under the CalIfurnia Attol11cy
General's Guidelines only "collectives" or "cooperatives" are legal unuer California law
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This extension is necessary because: I) the interim urgency ordinance initially adopteu by Council will expire
on July 6th; 2) the expiration of the interim urgency ordinance poses potential liability exposure to the City; 3)
the extensIon is necessary to protect the public safety, health and welfare of Chub Vista residents with regard to
the proliferation of negative seconuary effects related to medical marijuana dispensaries; 4) there is no standard
California city regulatory policy or oruinance mouel with regard to medical marijuana dispensaries anu staff
neeus more time to evaluate the existing ordinances to determine which foml of regulation/legislation will be
1110st effective; 5) the Appellate Court decision in Qualified Patients Association, et ill. v. City of Anaheim has
not heen issued which will provide guidance on mlll1icipal regulation of meuicalmarijuana dispensaries under a
zouing ordmance; amI (j) the City and County of San Diego have yet to pass their regulatory ordinances with
rcgard meuical marij Llana dispensaries and staff needs time to analyze the regulations that may be passed anu
whether they will be challenged in court.
ENVlRONMENTAL REVIEW
This proposed activity has been reviewed for compliance with the California Environmental Quality Act
(CEA W) and it has lieen determineu that the activity is not a "Project" as defined unuer Section 15378 of the
state CEAQ Guiuelines because it will not result in a physical chance in the environment; therefore, pursuant to
Scction 15060(c)(3) of the Statc CEQA Guidelines, the activity is not subject to the CEQA. Thus, no
environmental review is necessary.
RECOIVIMENDA nONS
1. Extend an interim urgency ordinance placing a moratorium on the legal establishment and operation of
medica! marijuana dispensaries and cooperatives.
BOARDS/COMMIssrON RECOMMENDATION
N/A
DlSCUSSION
BACKGROUND ON URGENCY ORDINANCE EXTENSrON REQUEST
On July 21, 2009, City Council adopted an Interim Urgency Ordinance by a vote of 4-to-0. On September 1,
2009, the interim urgency ordinance was extemleu for 10 months and 15 days which is the first standard
extension authorIzed by Government Code 65858 by a vote of 4-to-0. The interim urgency ordinance is set to
expire July 6th unless othcrwise extendcd.
The interim urgency ordinance was approveu by Council to insulate the City from liability and to protect the
public safety, health and we1fare of Chula Vista residents with regard to the proliferation of negative secondary
effects related to medical marijuana dispensaries
This proposal IS comprised of one component, which is to extend for an additional 12 months the interim
urgency ordinance. This extension would continue the moratorium on the legal estahlishment and
operation of medical marijuana dispensaries while staff prepares a report and recommendation for
regulating this land use.
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Since the adoptIon of the interim urgency ordinance, the City has not adopted rules and regulations
specifically applicable to tbe establIshment and operation of medical marIJuana dIspensaries.
Staff has met with proponents, applicants and those opposing regulation to seek public input and guidance
on any potential regulation.
Although Proposition 215 was passed in 19%, no guidance has been provided to Califorma cities by either the
courts or the state on how to apply Proposition 215 and how to best regulate orgamzations that provide medical
marIJuana. Staff cannot overemphasize the dearth of direction to cities on this issue. The California Attorney
General Guidelines merely discuss how to go about legally estahlishing cooperatives and the Attorney General
has not provided any insight into how cities should regulate this issue (nor does staff expect him to).
Each city that does regulate medical marijuana takes an ad hoc approach to regulation with differing regulatory
methods and statutory language. There are many issues involved with a regulatory ordinance and none of the
current regulatory ordinances are consistent with each other. Thus, there is no "cookie cutter" municipal
ordmanee to regulate medical marijuana that cities could easily employ and adopt.
Moreover, many California citIes that have adopted regulatory provisions are now re-thinking their regulations
because of the proliferatIon of medical marijuana dispensaries and the inefIectiveness of their regulations. For
example, the City of San Diego's Committee on Public Safety and Neighborhood Services has not yet Icdly
issued their recommendations to the City Council on a regulatory ordinance despite dirccting them to do so last
Fall. Other cities such as OaJdand and Los Angeles that have experienced an excessive number of dispensaries
have passed caps on the total number permitted witlun city limits.
This issue is extremely expansive and there are multiple zoning, operational and law enforcement concerns
related to the establishment of cooperatives within city limits. In moving forward, many complex zoning and
regulntory concerns need to be researched and analyzed and some of these issues are currently being challenged
in the courts. These concerns, as raised in prior staffreports, include:
1) In what zones will medical marijuana cooperatives be allowed if at all?;
2) Are there playgrouuds, elementary schools, etc., that would limit the areas where medical marijuana
dispensaries could exist within these zones?;
J) What impacts on other businesses within these zones may result if medical marijltana dIspensaries are
permitted?;
4) What lype of medical marijuana establishments will be permitted within Chub Vista?;
5) Will cooperatives be permitted to have storefront locations where they dispense to patients?;
G) What definitions should be employed lforn other ordinances to regulate these establishments and
nledical 111arijuana use?;
7) How far will the cooperatives be permitted to operate from each other, schools, day care centers and
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parks? ,
8) Will there be a "cap" on the total number of cooperatives?;
9) What hours of operation shall bc set?;
10) What regulatory tools should be employed by way of an ordinance, i.e., a conditional use permit?;
] I) What types of fees should be established to process these applications?;
] 2) Will the ordinance mandate Chief of Police background check approval on proprietors, employees?;
13) Can the permits that may be issued go through a revocation hearing based on calls for service?;
14) Does Council want to establish a special tax on these businesses?;
15) What fonn of public input should be sought on this matter and how can it be incorporated into this
process?;
16) Would be Council desire to establish a citizen task force committee to research and prepare
recommendations to the PlannIng Commission akin to what the City of San Diego has done?;
17) To what extent should staff coordinate with other South County cities facing the same Issue and
incorporate their etTorts on any regulatory provisions?; and
18) To what extent could the City regulate dispensaries on a basis unrelated to local land use authority?
The proposed extension of this ordl11ance would allow for the time needed to analyze each of these issues
and present a thoughtful, effective and well-devised regulatory scheme that addresses all relevant issues if
directed to do so. The extension will provide additional time for garnering public input, conducting
meetings, completing research and considering regulations for these establishments 111 a manner that will
pmtect the genera] public, residents and busincsses adjacent to and near such businesses, and the patients or
clients of such establishments.
The zoning ordmance would need to bc amended which would first have to go through Planning Commission to
make recommendations to Council. A zoning ordinance amendment must be requested by a majority vote of
Council. CVMC S 19.12.0:20.
Many San Diego cities have also passed similar interim urgency moratoriums and moratorium extensions
includl11g Santee, Oceanside, Escondido, NatIOnal City and Imperial Beach.
Many cities in Califomia have outright, explrelt bans on medical marijuana dispensaries and cooperatives.
Some of these Cities include Escondido, Vista, San Marcos, El Cajon, La Mesa, Lemon Grove, San Marcos,
Plcasanton, Pleasant Hill, Concord, Cathedral City, Moreno Valley, Roseville, San Rafae], Redlands, Windsor,
Ukiah, Oceanside, Slmi Valley, Trinidad, Cloverdale, Peta]uma, Susanville, Oxnard and Palm Desert (to name a
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few).
In addition, many cities are CLlITently involved in medical marijuana civil litigation over their hans or regulatory
ordinances including: Anaheim, Chico, Los Angeles, Fresno, San Francisco, Oakland and Alameda.
According to tlle Americans For Safe Access wehsite, in CalIfornia over 113 cities and 7 counties have medical
marijuana dispensary bans (120 total), 51 cities and 3 counties have moratoriums (54 total), whereas only 32
cities and () counties (40 total) currently pemlit medical marijuana dispensaries. According to these statistics
the majority of California municipal organizations cUITently ban medical marijuana or have a moratorium on it.
BACKGROUND ON MEDICAL MARI.JUANA IN CALIFORNIA
In 1996, California voters approved Proposition 215, also known as the "Compassionate Use Act or 1996." Ca!.
Health & Safety Code ~ 11362.5. Proposition 215 provides seriously ill Californians the right to obtain and use
marijuana for medical purposes when such use is recommended by a physician. The recommendation can be
oral or wntten. Proposition 215 further provides that hoth the patient and the patient's "primary caregiver" are
exempt from prosecution for violating state laws against the possession and cull1vation of marijuana. "Primary
caregiver" is defined as the indiVidual designated hy the patient who has consistently assumed responsibility for
the housing, health, or safety of that person. !d
Effective January I, 2004, the Legislature enacted the "Article 2.5 Medical Marijuana Program" [Medical
Marijuana Program] also commonly refeITed to as "SB 420" (Senate Bill 420). Ca!. Health & Safety Code SS
11362.7-11362.83. The legislation expanded the state law exemptions for qualified patients and primary
caregivers to include exemptions from arrest and prosecution for possession for sale; transportation,
distribution, and Importalton; mamtaining a place for unlawfully selling, distributing, or using; knowmgly
making availahle a place [or unlawful manufacturing, storage, and distribution; and using such a place. The
legislation also allows marijuana to be collectively or cooperatively cultivated for medical purposes by qualifieu
pati",nts and primary caregivers. Ca!. Health & Safety Code ~ 11362.775. Cultivating or distributing marijuana
[or profit is expressly disallowed. Ca!. Health & Safety Code ~ 11362.765(a). Primary caregivers may recover
reasonable compensation for services and for out-of-pocket expenses. Ca!. Health & Safety Code ~
11362.765(c).
State law does not authorize the smokiug of marijuana in places where smoking is otherwise prohibited, nor
does it authorize 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 withlll a residence. Ca1. Health &
Safety Cude S 11362.79. State law does not require workplaces or jails to allow medical marijuana use. ea!.
Health & Safety Code S 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 S 11362.71. The intent of the Medical
Marijuana Program is, 111 part, to insure a unifonll, statewide identification program for patients and primary
caregivers. As part of the Medical Marijuana Program, each county health department. or the county's designee,
provides applicatIons, receives and processes completed applications, and issues identification cards. Ca!. r
kaki) & Safety Code ~~ 11362.71(b); 11362.72-11362.74. Participation is volulltary and possession of an
Identification card is llot required to qualify for the protections of Proposition 215 and the Medical Marijuana
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Program. The County recently began issuing identification cards.
REPORT DESCRIBING MEASllRES TO ALLEVIATE CONDITIONS LEADING TO PRIOR
ADOPTION OF INTERIM URGENCY ORDINANCE
City staff has been carefully monitoring municipal responses and efforts throughout Cali fornia with regard to
the issue of medical marijuana. For example, the Police Department has been monitoring public safety
concems and crime rates involving regulated medical marijuana collectives and their surrounding areas. And
the Planning Department has been monitoring the regulatory aspects of other municipal ordll1'U1ces regulating
medical marIjuana dispensaries, what types of city zones they are permitted to be in, etc.
The City 01' Los Angeles passed its regulatory ordinance in January 20 I 0 and directed the City Attorney's
Office to shut down 439 dispensaries that have opened within the last 2 years without pem1its. And estimated
135 will be allowed to remain so long as they comply with the ordinance.
The City of Los Angeles's Zoning Administrator has also made a determination that the new ordinance requires
dispensaries to "operate in a way that is similar to medical offices and clinics" which would require additional
parking spaces to accommodatc disabled individuals. This interpretation has been challenged 111 court by the
dispensaries affected.
The City 01' San Diego's Medical Marijuana Task Force has issued its recommendations to the Public Safety
and Neighborhood Services Committee. These proposals may be amended by the Public Safety and
Neighborhood Services Committee before being submitted to the City Council for consideration.
The County of San Diego's Department of Planning and Land Use has prepared a draft Medical Marijuana
Collectives County Code and Zoning Ordinance which will be voted on by the County Supervisors in a public
hearing 111ld-SUl1Jlller.
In addition, the California State Assembly has recently passed AB 2650 which bans medical mariJllana
storefronts from being located within GOO feet of a school. Passage 111 front of the State Senate is currently
pending.
ANALYSIS
The proposed extension of the interim urgency ordinance would affect most land use designations and
lands within the City's junsdiction. The proposed extension of the interim ordinance would continue a
moratorillm on the legal establishment and operation of medical marijuana dispensaries that was
initially established on July 21, 2009. This use would not be permitted in any Zoning District WIthin
the City during the l11oratonum.
Proposing an extension for the interim ordinance conforms to the goals, objectives, and policies of the
General Plan.
The CIty's General Plan is geared towards maintaining "strong and safe neighborhoods" and one of its
goals is that "[e]aeh neighborhood in Chula Vista.. is safe and attractive. . . [and where] Citizens
feel safe to walk within and among neighborhoods and allow their children to do the same." General
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Plan at Page V&T-5.
As stated 1n the City's General Plan, "[tJhe Zoning Ordinance is the primary tool for implementing the
Gencral Plan, and is designed to protect the public health; safety; comfort; convenience; prosperity
and general welfare of the people." General Plan at Page LUT-5.
The proposed extension of the mOf<)torium on the legal establishmcnt and operation of med1cal
marij uana dispensaries provides the City CouncIl the opportunity to direct staff to prepare a report
descnbll1g how this land usc would or would not I) ensure the longterm community and neighborhood
values; 2) comply with Chula Vista's community enhancement goal, objective, and policies as stated
in the General Plan; and 3) describe measures which the City has taken to address the condltions that
led to the adoption of an interim urgency ordinancc. The proposed intenm ordinance complies with
goals and objectives stated in the General Plan. The proposed extension will also allow the City to
await judicial opinion expected in a case currently before the Fourth District Court of Appeal
(Qualified Patiellls Assn. v. City afAnaheim) on the constitutionality of medical marijuana dispensary
bans. A decision is expected to be issued in the case soon. A supplemental briefing request by the
Court of Appeal has delayed the issuance of a decision in this case.
In order to protect the public safety, health and welfare, the City Council, after a public hearing, may
extend the interim Llfgency ord1nance prohibiting thc establishment of mcdical marijuana dispensaries
within the City if it finds that such uses may be in conflict with a contemplated general plan, specific
plan, or zoning proposal that the Development Services Department is studying. The City Council
shall hear testimony from staff and any ll1tcrested parties regarding the extension of the InterIm
ordinance, after which the City Council shall adopt or reject the proposed extension. ExtenSIOn of the
interim ordinance requires a super-majorIty (four-fifths) vote of the City CounciL
The City Attorney's Office has reviewed the proposed ordinance and approved it as to form.
DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is not site speci fic and
consequently the 500 foot rule found in California Code of Regulations section 18704.2(a)(I) is not applicable
to this decision.
CURRENT YEAR FISCAL IMPACT/ ONGOING FISCAL IMPACT
The temporary ban results in no fiscal impact currently.
ATTACHMENTS
May 21, 2010 San Diego City Attornev's memorandum responding to recommendations from the San Diego
Medical 'Marijuana Task Force-'
Prepared b.l" Chance C HaH1kit/5, Deputy CiN Allornev. elly Attorney's Office
2 The Chula Vista City Attorney's Office has not verified the legal accuracy of the opinions cited herein.
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PS & NS MAY 26 ZG10 #10
OFFICE Of
MAR Y T NUESCA
emf!' DEPLTi em' ATTORN!:'>'
CITY OF SAN DIEGO
!20D ll1:IRD AVENUE. SUITE lii20
SAN DIEGO, CAUrORNiA g2IGl-4178
TELEPHOKE (6 191 ~.36-0220
F.~(6l9)23(; 7215
MARY.10 L.\NZAFAME
ASCilS-r....l-.7 (TTY ATT(IRNE,'
THE CITY ATTORNEY
Jan 1. Goldsmith
em" A TIQR......'EY
May 21, 20JO
REPORT TO THE PUBLIC SAFETY AND
NEIGHBORHOOD SERVlCES COMMITTEE
RECOMMENDATIONS FROM THE MEDICAL MARlJUANA TASK FORCE, REPORT
NO. 10-060, REGULA TlO]\;S OUTSIDE LAND USE AND ZONING
INTRODUCTION
On October 6, :2009, the City CounciJ fanned the MedicaJ Marijuana T3.Sk Force
(lvllvlTF). 111C MMTF was directed to provide !,,'lliddines for (I) patients and caregivers, (:2) the
struct:ure and operation of collectives and cooperuti Yes, and (3) poJice enforcement. The MMTF
produced two reports: a November] 2, 2009 R,,!,ort to Council addressing land use and zoning
issues-heard and modified by the Land Use and Housing Committee (LUH) on
March 24, 2010; and an April 21. 2010 Report to CounciJ regarding regulations that fall outside
ofJand use and zoning-heard at the Public Safety and Neighborhood Services Committee
(PSNS) on April 28, :2010. PSNS asked this Office to provide a report addressing the
recommendations contained in the ApriJ 21 Report. We have provid.ed general information
below. \\'11en more precise direction from City Council is given with respect to what kind of
reguJdions the City Council desires and what conduct will be addressed, this Office can provide
any necessary advice.
BACKGROUND
In 1996, Proposition 215, the California Compa.'5ionate Use Act (CUA), was passed by
the electorate. Proposition 215, codified at California Health and Safety Code section 1136:2.5,
allows the use of marijuana for medicaJ purposes when recommended by a physician and
excludes from criminal prosecution the patient and the primary caregiver, 3.S defined. In 2003,
the State of California enacted Senate Bill 4:20, the MedicaJ Marijuana PrOh'Iam Act (MMP1,
setting forth requirements for the issuance of voluntary identification (lD) cards; allowing the
cultivation, possession. saJe, or storage of marijuan a; prohibiting the distribution of marijuana for
profit; exempting from prosecution qualified patients and designated primary caregivers who
associate to collectively or cooperatively cultivate marijuana for medicaJ purposes; requiring the
Attorney General to issue guidelines fOT the security and nondiversion nfmedical marijuana; and
allowing cities to adopt and enforce laws consistent with thc MMP. The MM~P is codified at
California Health and Safety Code sections 11362.7- 11362.83.1 The Attorney GeneraJ issued
I The distribution 0[, or possession with intent (0 distribute, marijuana rcmalns a federal crime, 21 U.S.c. ~ 841,
This Office bas been asked Orl several occasions. to n:cuncile the State ofCalifornla';;- medica! marijuana la\\!s with
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REPORT TO THE PUBLIC
SAFETY AND NEIGHBOJUIOOD
SERVICES COMMITTEE
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f
"Guidelines for the Security and Non-Diversion of Mariju3l1a Grown for Medical Use" (AG
Guidelines) in
August 2008.
DISCUSSION
L GENERA.l, PRINCIPLES
Generally. the City hiLS broad discretion pursuant to its police powers to enact ordinances
to protect the public health, safetv, a.'ld welfaTe, so long iLS the ordinance does not conflict with
state or fedemI law". Ca!. Const. 'art. ]], & 7, Cal. Gov't. Code S 37100. A conflict exists if the
ordinance duplicates, contradicts, or enters an area fully occupied by general law, either
expressly or by legislative implication. Sherwin-Williams Co. v. City of Los Angeles, 4
Ca!. 4th, 893, 897 (1993). The California Uniform Controlled Substances Act (CSA), found at
California Health and Safety Code section 11000, ct. seq., occupies the field of defining drug
crimes ard specifying penalties for those crimes. 0 'Connell v. Citv of StOCKtOIl, 42
Cal. 4th 1061. ] 071-72 (2007). The CVA and MMP are contained within the CSA. The MMP
expressly allows local regulation consistent with the MMP. Cal. Health & Safety
Code !l11362.~3.
The AG Guidelines state that neither the CUA nor the MMP conflict with federal law
because the state did not legalize marijuana.' Additionally, the vuluntary identification card
progran\ contained ill the MlvrP does not conflict with federal law, County of San Diego 1'. San
Diego NORMi, 165 CaJ. App. 4th 798 (2008), nor does a court order ordcring law enforcement
to return marijuana upon the dismissal of criminal charges against a qualified patient. City of
Garden Grove v Superior Coun ~rOrange County (Kiwi, 157 Cal. App. 4th 355 (2007).
However, there is ongoing litigation related to the relationship between local, state, and federal
law4 See Qualified Patients Ass 'n, el. al. 1'. City of Anaheim, Case No. G040077, currently
pending before the Fourth District Court of Appeal, Division Three, wherein issues related to
[he federal prohibitions. ] 999 CiIY An'y Report 8. 2002 City AH'y MOL 5; 2007 Op. City Att'y 5; 2009 City Atly
RepoJi 18. As has been staled, [ht two cannot be recrmciJed.
2 See fn. 1 for previous City Attorney reports discl;ssing the conflict between the federal and state law.
~ The court.s have consistently described the CUA as a narrowly drafted smtute - a narrow m~asure with narrow
end.". People "1-', Jfentch, 45 Cat 4th 274, 286, n. 7 (200S); People fl. Urzlceaflu, 131 Cal. App. 4th 747, 772-73
(2005).
>1 For example, in eiry o/Lake Fores! v Moes, C[ aI, Cao:;c. No. 30~2009-00298887, May 11, 20 l 0, the trial court
ruled that Lake Forest could not promulgate code or zoning regul3tions due to the contlict 'vvith federal law, and
citing CaL Gov't Code S 37100. S<.'c also Associated Press report "OC Ju.dge says pot sh(lps in Lake Forresr must
close," Silicon Valley Mercury News, May 12, 2010, a1'ailahle at htto)/www,mercurvoews.comlbreakinu-
nC\!"'s/ci 15070ggg'?nc:1ick check=>-l. A trial court rubng is binding only on the parties involved in the litigation.
Eisenberg. Horvitz & IYiener, CAL. PRAC. GUIDE: CIVIL APPEALS & WRITS Vol. I.J 9 1 :14.1 (The Runer
Group :2009).
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May21,2010
./
prohibiting dispensaries, preemption, discrimination, and nuisance law, inter alia, are expected
to be ruled on by the court in July of this yea?
TIlere is little case law addres~ing the specifics of bow a city can regulate non land use
matters related to m"dical marijuana.' Two recent cas"s held tbat medical marijuana dispensaries
not in compliance with local zoning ordinances were public nuisances. City of Corona v. Naulls,
166 Ca!. App. 4th 618 (2008), and City ofClal"emont v. Kruse, 177 Ca!.
App.4th 1153, 1157 (2009). In Claremont, the court specifically said that neither the CVA nor
the MMP do not preempt a city's enactment or enforcement ofland use, zoning or business
liccnse as they apply to medical marijuana dispensaries.ld. at 1176. The Court examined the
history and case law surrounding the CVA and the MMP, noting that the nature of the right to
use marijuana is in the form of a limited defense to crimina! prosecution, not a constitutional
right to obtain marijuana. Jd. at 117 L
Both Cla~cmollt and Corona involved situations where the regulations at issue were land
use regUlations and where the local government was seeking closure of the dispensary. They did
not involve a challenge to a non land use regulatory sch"me.Jt is possible that a local
government could be challenged for imposing regulations that conflict with the CUA and MMP.
Conversely, local government could be challenged for enacting code or zoning regulations
allowing the use, sale, or distribution ofmarijuana6 Cal. Gov't Code ~ 37100.
The City, by enac.ting regulations, cannol guarantee that those regulations will provide a
"safe harbor" fTOm criminal liability for violations of the CSA because the imposition of criminal
liability and the affirmativ" defenses to those charges are matters of statewide concern.
Arguably, the City can act for the general health, safety, and welfare of its citizens so long as it
docs not conflict \\ith the CSA, CUA or MMP. Ca!. Health & Safety Code !i11362.83.
II. RECOMMEl'>"DATIONS
The MlvlTF general1y recommends an ordinance that closely regulates col1ecti"es and
cooperatives, however, there has been no specific structure proposed that win "closely regulate,"
collectives and cooperatives. Additionally, there has not been any determination made as to
whdher the regulations will apply to all colleCTIves and cooperatives, or only to those that
operate as a "storefront" Thus, this Report addresses several legal concepts.. Once the
Cornminee or City Council identifies specific actions It would like to take, this Office can refine
and address those actions.
5 Land use regularJ01:5 art: being separdteJy addressed by our Office pursu3nt to directiDn given to our Office tly
LUH aI i[s l.iarch 24, 2010 meeting.
r, See n-L 4.
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REPORT TO THE PUBLIC
SAFETY i'eND NEIGHBORHOOD
SERVICES COMMITTEE
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May21,2010
;'
1. Establishment of a Fee.
The MlvfTF recommends Ihal the City adopt cost-recoveryfcesfor medical mart'uana
cooperatives and colleciives pursuant to the Clo' of San Diego's process for determining Qnd
estahlishing cost-reeo'very fees. 7
To the extent th~ City enacts some type of regulatory or administrative scheme enforced
by the City, such costs are probably recoverable. Collier v. City alld Counly of Sa"
Francisco, 151 Cal. App. 4th 1326 (2007). (Regulatory fees spent for the purpose of1egitimate
re,'lllation are valid so long as they do not exceed the reasonably necessary expense of the
regulatory effort). See also lndependent Budget Analyst Report 10-15, dated February 16, 20 I 0,
discussing fees and describing specific concerns and noting modifications that may be needed in
the San Diego Municipal Code (SDMC) should the City Council adopI cost recovery fees related
to the regulation of medical marijuana dispeniing facilities. .
2. Definition of Non-Profit Operation.
The lvf11JTF recommends thai the City adoptlhe following slandard to determine whether
medical marijuana cooperatives and collectives arc operating in a non-profit manner in
compliance ....t.'ith State lavl-':
No collective sh"ll operale for profit. Cash and in-kind
contributions, reimbursements and reasonable compensation
provided by members towards Ihe collective's actual expenses for
the growth, cultivation and provision of medical marijuana shall
be allowed in accordance with State Law. All such cash and in-
~ind amounts and items shall befully documented. "Reasonable
compensation" shall mean compensatiOll for directors, managers
and/or other employees commensurate with reasonable ~'vages and
benefits paid to emplmees o{JRS-qualijied non-profit
organizations who have similar descriptions and duties. The
payment ofa bonus shall nol be considered "reasonahle
r;:ompcnsa!ion. "
. ,.
The MMP allows patients and caregivers to associate collectively and cooperatively to
cultivate marijuana for medica] purposes. Cal. Health & Safety Code ~ ] 1362.775, but no
individual or group may cultivate or distribute marijuana for pwfjr. Cal. Health & Safety
Code S 11362.765(a). Primary caregivers may receive compensation for actual expenses,
including teasonable compensation for services provided: enabling a patient to use marijuana,
out-of-pocket expenses incurred in providing those services, or boll1. Ca!. He"lth & Safety
7 The MlviTF n:':':llmmendations are represented by i1..llics throughout this Report.
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Code S. I 1362.765(c). "Cooperatives" must be formed as statutory entities pursuant to the
Corporations Or Food and Agriculture Code. TIle AG Guidelines state that a "collective" is not a
statutory entity. The Guidelines further state that as a practical matter may have to organize as
some form of business to cany out their activities. The Guidelines provide further suggested
guidelines lli,d practices.
'[1,e statements that a collective not operate for profit, and that there be documentation
descrihing the operation, are consistent with the AG Guidelines. To the extent there arc cash or
in-kind contributions, reimbursements and reasonable compen.sation, and those activities are in
accordance with state law, then that is also consistent with the AG Guidelines. To the extent such
compensatioll merely is another way of describing a permissible reimbursement consistent with
state law, it is likely allowable. To the extent that compensation can be judged by comparison to
other non-profits and be in compliance with state law is simply unknown. The definition of
"reasonable compensation" proposed is not found in state Taw or the AG Guidelines.'
3. Verification of Non-Profit Operation.
Tire i~[MTF recommends that on an annual basis each collective be given the opportunity
to provide evidence of its operation in a non-pr~(it manner /0 the City during the previous year.
Upon request by the City, each collective shall file with the City Controller an audit of its
()pel'(Jtions (~f the pre-vious calendar year, completed and certified bJ.I an independent certffied
public accountant in accordance ....1!ith generally accepted auditing and accounting principles.
TIle MMTF made the following recommendation in its Report To Council
Decemher 2009 (Zoning and Land Use): The Task Force recommends that the City require
dispensing collectives and cooperatives to submit, as part ~ftheir applicationfor a conditional
use permit, evidence that they are inCOlporated as statutory cooperatives or bona fide nonprofit
eorporalions! or documentation outlining their plans for operating in a not-for-profit mallner, as
contemplated b)' the A ttorne.v General's bru.idelines.
At lts March 24, 2010 meeting, the LUH Committee also recommended that proof of
non-pront status be required for a Conditional Use Permit (CUP).
The submission of"non-pront" operational plan.s, subsequent re;,iews and audits are not
appropriate for a CUP, 9 and, if desired by the Conncil, could be part of a separate regulatory
scheme. Although this specific recommendation is not described in the AG Guidelines, it appears
tn bc consistent with the goals of creating operations \\~th sufficient structure to ensure
S Vlitb respect to "reasonable compensation," slate law specifically allows primary l,;aregivers to rccc:ivc reasonable
cornpe:1sation for ccrt3in services.
9 Conditiofl3] use pennits create a right Lr.at attach to the land, not to any individual permittee. Anza ParJ...ing
Corporation v Ciev of Burlingame, 195 Cal. App. 3d 855 (1987); Alalihu },fountains Recreation, Inc. }!. County of
Los Angeles, 67 Cat. App. 4th 359 (1999).
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compliance with state la", and documenting the activities of the operation, as suggested in the
AG Guidelines. However, the placement of such a function with the City Comptroller will
require further review.
4. Documentation and Definibon of Closed-System Operation.
The bfMTF recommends that medical marijuana cooperative and collective applicants
shall document closed system operatiuns pursuant to the Attorney General's sruidelines. As such,
it is eJ.pecled that all collective members are potentially grL)1,t'Crs and can gro1i.l for themselves as
tlll__:,' are able ur as they choose. Collective members are expected to bring the excess medical
marijuana frorn their own personal grO'rt'S to the collective H!here the.v maJ-! he compensated b:v
cash or trade in-kind. Certain col/ective members choose that their sole suppO/.t to the
coope,rative effort v.'ill be to contribute their time and expertise in gro)-vlng me~lical marijuana
for the collective. Growers are compensatedfor.their time and e,,:r:penses tYl.gro.wingfor the
collective when the hm-vest is brought to the dispensary. Other members may participate m the
cooperative cultivation of the medical marijuana, however the gr01vers are responsible and
compensated by the transaction amount to be paid hy other members of the collective as their
con!rihution to the cultivation afthe medicine. Alernbers ma.v ofrer lahar at any point in the
cultivation cycle as their shlls and choices allow and as opportumf::.-..' permits.
TIle AG Guidelines state that collectives and cooperatives should doclUneIlt each
member's contribution oflabor, resources or money. To the extent the MMTF proposal describes
a system not. specifically described in the AG Guidelines, it is unknown whetber a court will find
. that this is a "collective" within the meaning of state law.
5. Background Checks for Dispensa.ry Directors, Mansgers, and Other
Emplqyees.
The A1MTF recommends that LiveScan .fIngerprinting be required of all porential
directors/l1zanagers/stq{f of dispensaries. Those who have been convicted of violent felonies or
convicted of crimes of moral twpitude within the past seven years shall be e.-1.:cludedfron! being
dIrectors, managers or- staff of dispensaries.
Under California law, crimes afmoral turpitude arc definedas those that "necessarily
involve an intent t.o defraud or intentional dishonesty fot the purpose of personal gain." J/1 re
Fahey, 8 Csi. 3d 842, 849 (1973). Crimes of moral turpitude are also described as acts of
baseness, vileness or depravity in the private and social duties owed by one persoD to another.
fJemyH v. BoardofPensioll Conu's. 149Cal. App. 3d 965, 975-76 (1983). Spccificerimes !l,at
have been found to be crimes of moral turpitude include fraud (People v. Cadogan, 173 CaL
App.4th 1502, (2009 J), perjury (People v. Chavez, 84 CaL App. 4th 25 (2000)), forgery (In re
Johnson, 1 Cal. 4th 689 (1992)), grand theft, and embezzlement (Chadwick 1'. State Bar, 49
CaL 3d J 03 (1989)).
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Background checks are currently authorized for police-regulated business pel1l1itees. See
San Diego Municipal Code section 33.0305. Background checks are also done for state licensure
for various occupations. The AG Guidelines do not address this issue; however, it is likely that
this type ofrcgulation would be upheld.
6. Prohibition of Employing Minors.
The Mi"ITF recommends that dispensing coilectives and cooperatives be prohihited
./i'om emploYing individuals under 18.vears of age.
Neither the CUA nor the ~U\1P set forth different regulations for tbose under 18 years
of age as compared to those over 18 years of age. Arguably, those under the age of 18 have the
sarne ability to collectively and cooperatively associate to cultivate marijuana "-, those over the
'age' of 18. Ca!. Health & Safety Code S 11362.775. The AG Guidelines do not address or suggest
any distinction between those under 18 and those over the age of 18.
However, courts have repeatcdly upheld laws that distinguish between minors and adults
for the minor's health or safety under the doctrine of parens patriae. See. e.g.. In re
Walter P., 170 Ca1. App. 4th 95, 101 (2009); Ca!. Educ. Code S48200 (subjecting minors to
compulsory education between ages six and eighteen); In re Nancy c., 28 Ca!. App. 3d 747, 758
(1972) (upholding curfew ordinance). "Without question. the city has a substantial interest in
public safety, and in the safety and well being of minors specifically." Vo v. City of Garden
Grove, ] 15 Ca!. App. 4th 425,44] (2004). Because minors are vuberable, immature, and subject
to adult care and contTol, cities may pass laws that discriminate against minors and limit their
liberty. In re Walter P., 170 CaJ. App. 4th at] 01 (upholding curfew imposed against a minor
who violated his probation). California Labor Code section 1294 prohibits minors from working
in "any occupation dangerous to the life or limb, or injurious to the health or morals of the
minor."
It is onclear what is meant by "employing" those under 18 years of age. A person under
tbe age of 18 may wish to participate in the collective endeavor as a way to obtain medical
marijuana as a patient or caregiver, and a limitation on such ability based on age could be
problematic because no soch distinction currently exists in the CUA, MMP, or guidelines. It may
be rrlOre defensible to create age restrictions for persons who are in positions ofmanagement of
the cooperative or collective. 1t is unknown how a court will evaluate such age restrictions
rebted to collective and cooperative associations.
7. Restrictions on Dispensing Medicallvlarijuana to Qualified Patients Under 18
Years of Age.
The Mil-ITF recommends thar qualified patients 18 or older or parents/legal guardians of
{! minor who is a qualified patient mG).J ootain medical cannabis for the patient. It is
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acknowledged that medical marijuana may be dangerous in the hands o/juveniles and th2 use
must be appropriatel~V supervised by a parent or legal guardian.
Neither the CUA nor the MMP require 3 parent or guardian's participation in the
acquisition of medical mmjuana for an otherwise qualified patient or caregiver who happens to
be under the age of 18. The AG Guidelines do not address or suggest any such requir=ent. JO
Our comments on recommendation number 6 are applicable here.
8. Prohibit.ion Against.Physicims' Consultations at Dispensaries.
The AflvfTF recommends that dispensing medical marijzwna collectives and cooperatives
.be prqhibited from offering physicians' consultations and recommendations on dispens{uy
pnZln1Ses.
This recommendation, if desired to be adopted by t.he Council. can be incorporated into a
CUP process as a prohibit.ed accessory use.
9. Restrictions on Medical Marijuana Transportat.ion.
The MAITF recommends that medical mar!luana may be transported onZv by patients,
caregivers or a member of a collective.
This recommendation is consistent. with state law, California Health and Safety Code
sections 11362.765 a.'ld 11362.775, and the AG Guidelines. Any person transporting marijuana
who is not a pat.ient or caregi ver would not be entit.led to t.he prot.ection of the CUA and MMP,
and would be in violation ofthe CSA. The City cannot. make criminal what is already il1egal, b1!.t.
it could include such a requirement. as part of a regulatory scheme or set of guidelines t.o be
fol1owed.
10. Packaging and Labeling.
The MAfTF recommends 1/wl (a) all packing of medical mar!luana be sealed in an
airtight manner and (b) a label be affixed to the package containing thefollolA.'ing information:
Patient 's name; Dispensing date,' lvame of product; Product ingredients; It milS! be used as
recommended,' II must be kept out of reach of children; Patients must not operate heavy
machinery 'while under the influence o.f medica! marijuana; It IS prohibIted to sell or tran~'fer
medical marUuana to non-patients; The product is inlended for medica! use on(v as slated under
the Cali.fornia Health and Safety Code section J J 362.5; Any use instructions and warning.
Jr) The Cit~y of Los Angeles does. not allow any person under the age of 18 at a cn!Jecti"'e unless the person is a
patient or has an ill card, and is accompa.nied by his or her doctor, parent or guardian. City of Los Angeles
Ordir,ance No. 181069.
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The packaging and labeling of substances that are ingested is generally regulated by the
federal Food and Drug Administration, and alsCl regulated in California by the Shcmlan Food,
Drug and Cosmetic Law. Ca!. Health & Safety Code SS 109875-110040. However, there are no
regulations addressing the packaging and labeling of medical ma..rijuana. We are not aware of
any way the City can determine the medical or scientific accuracy of the product specific
contents of the packaging and labeling requirements proposed here. Some of the inronnation,
such as requiring patient name and date, does uot require additional expertise and can likely be
incorporated into a regulatory scheme. The City could incorporate general warnings based on
existing statutes, such as the prClhibition against driving while under the influence of a controlled
substance, and references to the use being consistent with the CUA, MMP, and a doctor's
recommendation. This type of recommendation is not addressed in the AG guidelines, the CUA,
MMP or case law.
11. Patient Advisory for Edible Products and Concentrates.
The AflvfTF recommends that the 1i,Jarning on tire use of edible products and concentrates
contained in Allachmenl A be {'osled on Q wall in Ihe dispensary and Ihat edible producls and
concentra1es muS[ be labeled lvith an appropriate warning label.
See comments for number 10.
12. Applicability of Patients' Bill of Rights tCl Medica! Marijuana Patients.
The MMTF recommends that the elly ac!01owledge Ihat the Patients' Bill of Rights
applies to medical marijuana palients.
Caiifornia has a number of regulations that could be considered a "Patients' Bill of
Rights." See e.g. California Health and Sarety Code sections 1599-1599.4, relating to skilled
nursing facilities, and sections 1~4960-124961, relating to patients suffering from severe chronic
intractable pain. These regulations generally describe the relationship and duties of the patient
and doctor. Assuming a more precise reference to a particular set of rig hIS, the City's
acknowle.Jgement of such rights cannot create obligations that do not already exist under state
and federal law, nor can the City otherwise regulate the practice or medicine.
If the City desires to express its suppon for some type of "patients' bi!! of rights" related
to medical marijuana users, it is more appropriate to do so in a resolution rather than as part of an
ordinance or regulatory scheme,
,
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13. Revisions to Existing San Diego Municipal Code Provisions Relating to Medical
Marijuana.
The MMTF recommends that !he City afSan Diego revise existing municipal code
provisions relating to medica! marijuana in accordance ".vith Attachment B.
California Healtb and Safety Code section I] 362. 77 sets forth possession amounts which
protect patients, caregivers. and those with slate ]D cards from arrest, and allows counties and
cities to enact guidelines allowing greater limits. San Diego Municipal Code, Chapter 4,
Article 2, Division 13, "San DIego Medical Cannabis Voluntary Verification Card Program,"
created a City identification card program for medical marijuana patients and caregivers. As part
of that pragranl, SDMC section 42.1308(a)-(e) sets forth possession limits for both processed
marijuana as indoor plants, as well as requiring outdoor plants to be fully contained in a structlIre
. with the same iimits as indoor plants. Persons with the identification cards were not subject to
arrest for possessing amounts within the limits. SDMC section 42.1308(f) states that the San
Diego Police Department may evaluate persons who possess amounts in excess of the limits on a
case-by-ca$e hasis. San Diego's limits are higher than state law limits.
The City identification card program was never implemented, and is now preempted by
stare law because San Diego County is currently issuing ID cards." 88 Op. Cal. Alt'y Gen. 113
(2005). The SDMe amounts are used as guidelines by the San Diego Police Department. San
Diego Police Depamnent Procedure 3.28, 06/19/06.12
The California Supreme Court recently addressed the issue of possession limits in
,<People v. KeUv, 47 Cal. 4th 1008 (2010). The Court said that under the CUA, patients need only
have a doctor', recommendation to use manjuana, and that if arrested and prosecuted, the
patienUdcfendant has an affimlatlve defense to the charges if the amount possessed is reasonably
related to the patient's current medical needs. The CUA did not place a numeric cap on how
much is sufficient for personal use. Jd. at l027.28. In Kel~v, the defendant possessed more than
the state law limit contained in Calitornia Health and Safety Code section 1] 362.77, and the
prosecution argued that defendant had not proven tJlat he had a doctor's recommendation for
more. The Court said that insofar as California Health and Safety Code section 11362.77 burdens
. the defense set forth in the CUA, it unconstitutionally amended the CUA.IJ Jd. at 1024, j 046.
However, the Court did not sever that section; it held that insofar as there are other applications
that do not burden a defense available under the CUA, those applications are enforceable.
[d. at 1046-48.
:c,.,
II Although not pur! of the t\1MTF recom:ncndations, this may be an appropriate time for the City Council to
consider repeali:1g those sections of the SDMC Code that are preempted.
12 OUf understanding is that Proced\lfe 3.28 is currently under review by the San Diego Police Depanmt:nt.
1:\ The CUA, an initiative m:;:asure. cannot be "amended" by ~n act of the Legislature. Cal. Canst. art. Il, S 10.
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The MMP states in California Health and Safety Code section 11362.71(e), that a police
officer is prohibitedJrom arresting eitl:ter a primary caregiver or a qualified patient for
possession) transportation, delivery, or cultivation of marijuana in an amount that is lav.rful under
state law (up to 8 ounces and either 6 mature or 12 immature plants), if the person has a valid
County-issued medical marijuana ill card. Under California Health and Safety Code
section 11362.71(e), an officer can only make such an arrest of an official ID card holder if the
officer has probable cause to believe that tl:te ill card is false or falsified, tl:te ID card has been
obtained by means offr2lud, or the person has violated the quantity limits or other provisions of
the medical marijuana laws.ld. The court in Kelly expressly noted this 1111e and did not dislulb it.
Jd. at 1016-17. The Court noted that the lD card program is voluntary, arId so long as a defendant
can present a defense based on his or her current medical needs, the use of limits to provide
protection from arrest for card.holders is not unconstitutional. Id.
The MMTF, aware of the Kelly decision, appears to suggest that to tl:te extent the MMP
provides protection from arrest for ID cardholders, tl:te City should sd the limits at the amounts
described in Attachment B to their report. As noted. above, the Kelly case did not invalidate the
possession limits to the extent tl:tey are '-'sed to provide protection from arrest for ID cardholders.
Thc City can likely set limits at a higher amount than provided in the MMP, as such legislation is
allowcd pursuant to California Health and Safety Code section 11362. n(c).
The suggested language also extends protection to persons with a valid physician's
recommendation. It is unknown whethcr a court would intcrpret such a regulation as a burden on
a defense, even if it is intended to provide protection to patients and caregivers. Tncre is no
requirement under tl,e CUA tl:tat a physician specify an amount when providing a
recommendation, thus such a requirement could be construed as cont1ictiug with the CUA ,
similar to the situation in Kelly.
CONCLUSION
There is little judicial guidance for the City In creating regulations that fall outside of the
land use arena. The Claremonl case does indicate localities have that authority, and there is
express authorization in the California Health and Safety Code fOT regulations consistent with the
MMP arid CUA. TIle conflict hctween state and federal law continues to be litigated. The kga1
issues around "medical marijuana" are still unsettled, and thus ripe for litigation-from both the
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perspective that local regulations restrict patients' and caregivers' rights under the CUA and
MJvIP, and from th~ perspective that local r~gu]ations conflict with state and federal law
prohibiting the use uf controlled substances.
Respectfully submitted,
JAN L GOLDSMITH, City Attorney
(}10 ," '\'\
.Ii . \' \ '.'1
By V"" i I ~ L-,
Mary T,~ucsca -
Chief Deputy City Attorney
MTN:aml
RC-2010-19
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ORDINANCE NO. 2010-
URGENCY ORDINANCE TO EXTEND AN INTERIM URGENCY
ORDrNANCE OF THE cny COUNCIL OF THE CITY OF CHULA VISTA
EXTENDING BY 12 MONTHS A MORATORIUM ON THE LEGAL
ESTABLTSHMENT AND OPERi\TJON OF MEDTCAL MARUUANA
DISPENSARIES AND COOPERATIVES WITHIN THE CITY OF CHULA
VISTA PURSUANT TO GOVERNMENT CODE SECTION 65858
f
WHEREAS, in 1996 the voters of the state of California approved Proposition 215
(codified as Health and Safety Code section 11362.5 et seq., and entitled "Thc Compassionate
Use Act of 1996");
WHEREAS, the intent of Proposition 215 was to enable seriously tll Californians to
legally possess, use, and cultivate manjuana for medical usc under state law;
WHEREAS, as a result of Proposition 2i5, individuals have established medical
marijuana dispensaries in various cities;
\VHEREAS, there is no state regulation or standard on the cultivation and/or distribution
of medical manjuana and each local jurisdiction may establish local guidelines in accord with
unique local concems;
WHI~REAS, in October 2005, the State Board of Equalization ll1stituted a policy that
allows medical marijuana dispensaries to obtain a seller's penn it, thus enabling the state to
collect sales tax on medical marijuana sales;
WH EREAS, in March 2009, the US Attorney General stated that federal law
enforcement ofIicials would ease enforcement at California medical marijuana establishments;
WHEREAS, the City of Chula Vista has not adopted rIlles and regulations specifically
applicable to the establishment and operation of medical marijuana dispensaries and cooperatives
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 adj acent to and near such businesses, and the patients or
clients of such establIshments;
WHEREAS, a medical marijuana dispensary and/or cooperative currently IS
expressly prohibited by an Interim urgency ordinance;
WHEREAS, the establishment of a medical marijuana dIspensaries and/or
cooperatives in the City will result in a direct and immediate threat to the public
health, safety and welfare becaLIsc the City does not currently regulate the location
and operation of medical marijuana dispensarIes and docs not have a regulatory
program In effect that Will approprIately regulate the location, establishment, and
operation of dispensaries and/or !:ooperatives in the City;
WHEREAS, the first extension of the interim urgency ordinance was
insufficient for Staff to comprehensively review and consider options for the
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regulation of medIcal marijuana dispensaries in the City. The
extension would allow sufficient tlme to complete said
recommendations to the Planning Commission; and
proposed and final
report and make
\VHEREAS, the City Councd now desires to adopt this Ordinance as an
urgency ordinance, effective immediately, to continue the preVIOusly approved interim
urgency ordinance placing a 45-day moratorium, extended for 10 months and fifteen days, and
prohIbit the establishment of medical marijuana dIspensaries, as define hereafter, in
any zone of the City of Chula Vista pursuant to the authority set forth in California
Government Code Section 65858.
;"
The City Council of the City o[ Chula Vista, California, DOES HEREBY
ORDAIN as follows:
SECTION I. Definition. For purposes o[ this ordinance, "medical marijuana
dispensary" shall mean any facility or location where a primary caregiver intends to
or does make available, sell, transmit, give, or otherwise provide mediealmarijuana
to two or more of the following: a qllaJified paticnt, a person with an identification
card, or a primary caregiver. For purposes of this ordinance, the terms "primary
caregiver," "qualified patient," and "a person with anldenti[ication card" shall have
the same meaning as that set forth in Health and Safety Code Section 11362.5, et
seq. A "medical marijuana dispensary" does not include'the following uses, as I~ng
as the location of such uses are otherwise regulated by the City's Municipal Code: a
cliniC licensed pursuant to Chapter 1 of Division 2 of the Health and Safety code: a
health care [aciILty licensed pursuant to Chapter 2 of Division 2 of the Health &
Safety code; a residential care facility for persons with chronic life-threatening
illness licensed pursuant to Chapter 3.01 of Division 2 of the Health & Safety Code;
a residential care facility 14 the elderly licensed pursuant to Chapter 3.2 of Division
2 of the Health & Safety Code, a residential hospice; or a home health agency
licensed pursuant to Chapter 8 of the Health & Safety Code as long as any such use
complies strictly with applicahle law Including, hut not limited to, Health & Safety
Code Section 11362.5 et selj.
SECTION 2. 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 be issued while this
ordmance IS in effect.
SECTION 3, 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 Califorma Code of Regulations (CEQA Guidelines) ~15060(c)(21
(the activity will not result in a direct or reasonahly foreseeable indirect physical
change in the environment) and 015060(c)(3) (the activity is not a project as
defined m Section 15378) because it has no potential for resulting in physical
change to the environment, directly or indirectly, it prevents changes in the
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environment pending the completion of the contemplated Municipal Codc review.
SECTION 4. The City Manager or his designee shall: (1) review and
consider options for the regulation of medical marijuana dispensaries in the City.
including. but not limited to the development of appropriate rules and regulations
governing the location and operation of such establishments in the City; (2) mcet
with medical patients, advocates, law enforcement representatives, and othcr
interested parties; and (3) shall report back to Council describing the measures
which the City should take to address the conditions which lcd to the adoption of
this ordinance with the City Council ten (10) days prior to the expiration of this
interim ordinance, or any extcnsion thereof.
;'
SECTION 5. This interim ordinance IS extended pursuant to Section ()5858
of the California Government Code.
SECTION 6. The City Council declares this Ordinance is necessary as an urgency
measure to preserve and address existing and immediate threats to the public health, safety, and
welfare. Thus urgency Ordinance is adopted pursuant to Section 65858 of the Calitomia
Government COlle.
SECTION 7: EtIective Date. This Ordinance is herehy declared to be an urgency
measure pursuant to Government Code scction 36937 and City Charter section 311(d), and shall
take effect immediately upon its adoption by not less than a four-fifths (4/5) vote of the City
Council and shall extend the current moratorium by 12 months pursuant to Govemment Code
section 65858. The City Clerk shall certify passage and adoption of this Ordinance by not less
than a taur-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 was
passed and adopted.
SECTION 8. Expiration. This moratorium shall be of no further force or elIect upon the
expiration of 12 months from the date of its passage.
SECTION 9. Severabilitv. If any section, sentence, clause or phrase of this
Ordinance is for any reason held to he 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 declares that it
would have passed this ordinance and adopted this Ordinance and each section,
sentence, clause or phrase thereof, irrespective of the fact that anyone or more
sections, subsections, sentences, clauses or phrases be declared invalid or
unconsti tutional.
Presented by
~~-~
6,-;-;-;;-;: C-H-;- (i n s ------------
Deputy City Attorney
Approved as ~orll1 by
L:...-.--../;:.;:>
~.,--/-----
-_:..~~~~-- --------
Bart CVvl-1 .elel ---~
City Attorney
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