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HomeMy WebLinkAbout17 ORD MED MARIJUANA 02-06-06AGENDA REPORT MEETING DATE: FEBRUARY 6, 2006 TO: WilLIAM A. HUSTON, CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: INTERIM URGENCY ORDINANCE NO. 1309 SUMMARY Interim Urgency Ordinance No. 1309 is an urgency measure proposed by the City of Tustin to establish a temporary moratorium on the establishment and operation of medical marijuana dispensaries within the City of Tustin for a period of 45 days. The Ordinance would prohibit the issuance of permits for the aforementioned uses pending the completion of a written report describing the measures taken to alleviate the condition which led to the adoption of the Ordinance. The report may include a study of potential code amendments to the City's land use regulations that are needed to address a current and immediate threat to the public health, safety, and welfare. Following the issuance of the written report, the City Council may hold a public hearing and extend the Ordinance for an additional ten (10) months and 15 days. RECOMMENDATION: That the City Council adopt Interim Urgency Ordinance No. 1309 by at least a four-fifths vote. FISCAL IMPACT: Interim Urgency Ordinance No. 1309 is a City-initiated project. There is no direct fiscal impact associated with the proposed Ordinance. ENVIRONMENTAL: Interim Urgency Ordinance No. 1309 is not subject to the California Environmental Quality Act ("CEQA") pursuant to Title 14, California Code of Regulations, Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 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; it prevents changes in the environment pending the completion of the written report described above. City Council Report February 6, 2006 Interim Urgency Ordinance No. 1309 Page 2 BACKGROUND AND DISCUSSION: Staff has received requests to operate medical marijuana dispensaries within the City. Existing City codes, including the Zoning Ordinance, do not specifically address or regulate the location or operation of medical marijuana dispensaries. There is a concern that Tustin's central and accessible location could make the City attractive for such businesses. To determine how to deal with the medical marijuana dispensaries and the potential negative effects on the public heath, safety, and welfare, staff recommends that the Council adopt a moratorium and direct staff to study the issue further. Such a moratorium allows the Council time to determine an appropriate course of action. Synopsis of Relevant Legislation and Court Cases The Controlled Substance Act of 1970 Under the Controlled Substances Act, enacted by Congress in 1970, marijuana is classified as a schedule one controlled substance. Generally, this classification is based on a determination that marijuana: has a high potential for abuse; has no currently accepted use for medical treatment; and, is not accepted as safe, even when used under medical supervision. This federal law makes it illegal to import, manufacture, distribute, possess, or use marijuana in the United States. Proposition 215, the Compassionate Use Act of 1996 In 1996, California voters passed Proposition 215, the Compassionate Use Act, with the stated intent of ensuring that seriously ill individuals have the right to obtain and use marijuana for medical purposes when recommended by a physician. This voter initiative exempts patients and their primary caregivers from prosecution under state laws that otherwise prohibit the cultivation or possession of marijuana. Senate Bill 420 - The Medical Marijuana Program In 2003, the State Legislature passed Senate Bill (SB) 420, which established the Medical Marijuana Program. This legislation created a voluntary system for qualified patients and their caregivers to obtain identification cards that would protect them from arrest for violations of State law relating to marijuana. When approving SB 420, the Legislature made findings that included the statement that the legislation is intended to "enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." However, the Bill does not expressly authorize the establishment of medical marijuana dispensaries. United States Supreme Court Decision in Gonzales v. Raich (2005) More recently, the conflict between the Federal Controlled Substances Act and California's Compassionate Use Act led to the United States Supreme Court decision in Gonzales v. Raich (2005) 125 S.Ct 2201. In the Raich case, Federal agents seized and City Council Report February 6, 2006 Interim Urgency Ordinance No. 1309 Page 3 destroyed marijuana plants that were being grown for personal medical use. The plaintiff sued to prohibit enforcement of the Controlled Substances Act (CSA) to the extent that it interfered with the medical use of marijuana as permitted under California law. The Ninth Circuit Court of Appeals held that Federal law enforcement authorities could not enforce the CSA against the plaintiffs because it exceeded the scope of Congressional authority under the Commerce Clause of the U.S. Constitution. The Supreme Court reversed, holding that the Commerce Clause allows Congress to prohibit cultivation or use of marijuana for medical purposes authorized by California law. Although the Supreme Court's analysis focused narrowly on the scope of Congressional authority under the Commerce Clause, the practical significance of this decision is that Federal law enforcement officers may continue to enforce Federal drug laws against Californians who cultivate or use medical marijuana. However, the case did not expressly rule on the question whether Proposition 215 and SB 420 are preempted by Federal law. Shortly after the Raich decision, the State Department of Health Services (DHS) briefly stopped issuing medical marijuana identification cards due to concern that issuing such cards might subject its employees to prosecution for aiding and abetting the possession or cultivation of marijuana in violation of Federal law. DHS requested the State Attorney General to provide legal advice on this issue. The Attorney General responded with a letter advising DHS that its employees were not in danger of Federal prosecution and were still obliged to continue carrying out their statutory duties related to implementation of the medical marijuana identification card program. Other Communities Several cities that have marijuana dispensaries in their jurisdictions have experienced an increase in crime associated with the dispensaries. Such crime ranges from the resale of medical marijuana to individuals who do not have physician recommendations to robberies of the dispensaries themselves. Of particular concern is the fact that crime is not being consistently reported by dispensaries and users because they do not want to jeopardize the status of the dispensaries. Based on the experiences of these other cities, the City is concerned that marijuana dispensaries have the potential to increase crime and violence and other negative secondary effects. Other Orange County Cities such as Costa Mesa, Newport Beach, Lake Forest, and Huntington Beach, to name a few, have adopted moratoria or permanent procedures related to medical marijuana dispensaries. Interim Ordinance No. 1309 Adoption of Interim Urgency Ordinance No. 1309 would establish a temporary moratorium on the establishment and operation of medical marijuana dispensaries within the City of Tustin for a period of 45 days pending the completion of a written City Council Report February 6, 2006 Interim Urgency Ordinance No. 1309 Page 4 report describing the measures taken to alleviate the condition which led to the adoption of the Ordinance. The report may include a study of potential code amendments to the City's land use regulations that are needed to address a current and immediate threat to the public health, safety, and welfare. Following the issuance of a written report by the City Council, the Ordinance may be extended by the City Council after notice and a public hearing for an additional ten (10) months and 15 days. Detailed findings in support of the adoption of Interim Urgency Ordinance No. 1309 are included within the Ordinance. In part, staff is recommending that the Council address the issue now because: staff has received requests to operate medical marijuana dispensaries and there are no standards in place; other jurisdictions have passed ordinances prohibiting medical marijuana dispensaries, increasing the likelihood that Tustin may be an attractive location for such businesses; the U.S. Supreme Court in Raich v. Ashcroft determined that the possession and distribution of marijuana, even for medical purposes, is unlawful under the Federal Controlled Substances Act; and, law enforcement agencies with medical marijuana dispensaries in their jurisdictions have documented adverse secondary impacts from the dispensaries, and it is reasonable to conclude that similar negative effects on the public health, safety, and welfare will occur in Tustin due to the establishment and operation of medical marijuana dispensaries. The City Attorney's office prepared the ordinance and therefore has approved the form and content of the proposed Interim Urgency Ordinance No. 1309. Elizabeth A. Binsack Director of Community Development Attachment: Interim Urgency Ordinance No. 1309 S:\Cdd\CCREPORT\lnterim Urgency Ordinance MMD.OOC ORDINANCE NO. 1309 AN INTERIM URGENCY ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, ESTABLISHING A TEMPORARY MORATORIUM ON THE LEGAL ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES WITHIN THE CITY OF TUSTIN FOR A PERIOD OF 45 DAYS PENDING A STUDY OF ZONING REGULATIONS THAT ARE NEEDED TO ALLEVIATE A CURRENT AND ACTUAL THREAT TO THE PUBLIC HEALTH, SAFETY, AND WELFARE The City Council of the City of Tustin, California, does hereby ordain as follows: SECTION 1. This interim urgency ordinance is adopted pursuant to Section 65858 of the California Government Code. SECTION 2. The City Council hereby finds, determines and declares that this interim urgency ordinance is necessary because: A. 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 "The Compassionate Use Act of 1996"). B. The intent of Proposition 215 was to enable seriously ill Californians to legally possess, use, and cultivate marijuana for medical use under state law. C. As a result of Proposition 215, individuals have established medical marijuana dispensaries in various cities. D. Other California cities, which have permitted the establishment of medical marijuana dispensaries, have experienced an increase in crime, such as burglary, robbery, loitering around the dispensaries, increased pedestrian and vehicular traffic and noise, and the sale of illegal drugs in the areas immediately surrounding such medical marijuana dispensaries. E. Based on the experience of other cities it is reasonable to conclude that similar negative effects on the public health, safety, and welfare will occur in Tustin due to the establishment and operation of medical marijuana dispensaries. F. On June 6, 2005, the United States Supreme Court decided Gonzales v. Raich, 125 S. Ct. 2195 (2005). The Court found there to be no legally recognizable medical necessity exception under Federal Law to the prohibition of possession, use, manufacture, or distribution of marijuana under Federal law. SECTION 3. For purposes of this ordinance, "medical marijuana dispensary" means any for profit or not-for-profit facility or location, whether permanent or temporary, where the owner(s) or operator(s) intends to or does possess and distribute marijuana for any commercial purpose. A "medical marijuana dispensary" includes a 210569.1 marijuana club as described in People v. Peron (1997) 59 Cal.AppAth 1383. A "medical marijuana dispensary" shall not include the following uses, as long as the location of such uses are otherwise regulated by the City's Code: a "collective" as defined in Health and Safety Code Section 11362.775; a clinic licensed pursuant to Chapter 1 of Division 2 of the Health & Safety Code; a health care facility 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 for 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 applicable law including, but not limited to, Health & Safety Code Section 11362.5 ~~. SECTION 4. A medical marijuana dispensary currently is not a permitted use in any zoning district in the City of Tustin. However, such establishments may seek to locate in certain commercial districts disguised as permitted uses, or may seek to legalize this use. SECTION 5. The establishment of, or the issuance or approval of any permit, certificate of use and occupancy, or other entitlement for the legal establishment of a medical marijuana dispensary in the City will result in a threat to public health, safety, and welfare in that the Tustin City Code does not currently regulate the location and operation of medical marijuana dispensaries, and the experience of other cities with such dispensaries shows that negative effects on the public health, safety, and welfare occur in the vicinity of such uses. In addition, the dispensing of marijuana for any reason, including medical reasons, is illegal under Federal Law. SECTION 6. For the period of this ordinance, or any extension thereof, 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, and neither the City Council nor City staff shall approve any use interpretation, permit, certificate of use and occupancy, Zoning Code, or General Plan amendment allowing the establishment or operation of a medical marijuana dispensary. SECTION 7. The City Council finds that this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) (Title 14, of the California Code of Regulations) because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated City Code review. SECTION 8. Ten (10) days prior to the expiration of this interim urgency ordinance, or an extension thereof, the City Council shall issue a written report describing the measures which the City has taken to address the conditions which led to the adoption of this ordinance. 210569.1 2 SECTION 9. This interim urgency ordinance shall take effect immediately upon its adoption by a four-fifths (4/5) vote of the City Council. This interim urgency ordinance shall continue in effect for forty-five (45) days from the date of its adoption and shall thereafter be of no further force and effect unless, after notice pursuant to California Government Code Section 65090 and a public hearing, the City Council extends this interim urgency ordinance for an additional period of time pursuant to California Government Code Section 65858. SECTION 10. If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this Ordinance or any part thereof is for any reason, held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause and phrase thereof, irrespective of the fact that anyone or more sections, subsections, subdivisions, sentences, clauses or phrases be declared unconstitutional. PASSED, APPROVED, AND ADOPTED this 6th day of February 2006. DOUG DAVERT, MAYOR ATTEST: PAMELA STOKER, CITY CLERK 210569.1 3 ORDINANCE CERTIFICATION STATE OF CALIFORNIA) COUNTY OF ORANGE) ss. CITY OF TUSTIN ) ORDINANCE NO. 1309 PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Interim Ordinance was passed and adopted at a regular meeting of the City Council held on the 6th day of February, 2006, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: PAMELA STOKER, CITY CLERK Published: 210569.1 4