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HomeMy WebLinkAbout01 MED MARIJUANA ORD 03-20-06AGENDA REPORT MEETING DATE: MARCH 20, 2006 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: INTERIM URGENCY ORDINANCE NO. 1310 Medical Marijuana Dispensaries SUMMARY On February 6,2006, the City Council adopted Interim Urgency Ordinance No. 1309, a 45-day moratorium on the establishment and operation of medical marijuana dispensaries within the City of Tustin. The Council may extend the moratorium for up to a ten (10) month and fifteen (15) day period if approved by a four-fifths vote. Pursuant to Government Code Section 65858, ten (10) days prior to the expiration of the interim ordinance, the City Council is required to issue a report describing the measures taken to alleviate the conditions that led to the adoption of the ordinance. Interim Urgency Ordinance No. 1310 proposes to extend the moratorium by 10 months and 15 days and this report is intended to fulfill the requirements of Government Code Section 65858 (d). During this time, staff would complete a study of potential code amendments to the City's land use regulations that are needed to address the current and immediate threat to the public health, safety, and welfare. RECOMMENDATION: That the City Council: 1. Issue the written report contained herein required by Government Code Section 65858 and adopt by Minute Motion. 2. Hold a public hearing and adopt Interim Urgency Ordinance No. 1310 by at least a four-fifths vote. FISCAL IMPACT: The written report required by Government Code Section 65858 and Interim Urgency Ordinance No. 1310 are City-initiated projects. There is no direct fiscal impact associated with the written report or the proposed Ordinance. ENVIRONMENTAL: The report required by Government Code Section 65858 and Interim Urgency Ordinance No. 1310 are not subject to the California Environmental Quality Act City Council Report March 20, 2006 Interim Urgency Ordinance No. 1310 Page 2 ("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 both have no potential for resulting in physical changes to the environment, directly or indirectly. BACKGROUND AND DISCUSSION: On February 6, 2006, the City Council adopted Interim Urgency Ordinance No. 1309, a 45-day moratorium on the establishment and operation of medical marijuana dispensaries within the City of Tustin (Attachment 2). The Council may extend the moratorium for up to a ten month and fifteen day period if approved by a four-fifths vote. Pursuant to Government Code Section 65858, ten (10) days prior to the expiration of the interim ordinance, the City Council is required to issue a report describing the measures taken to alleviate the conditions that led to the adoption of the ordinance. Staff is recommending that the City Council issue and adopt the following report by minute motion: Written Report Required bv Government Code Section 65858 . City staff, both prior to and after the Council adopted the forty-five day moratorium, have been holding meetings and undertaking fact gathering efforts including contacting other agencies to determine the effects of the dispensaries and to determine and analyze options that may be available to permit and/or regulate such uses. The efforts to date are described herein. . The existence and operation of medical marijuana dispensary uses are relatively new concepts. The full scope of the potential impacts of these uses is not known; however, other communities where they have opened have reported occurrences of such negative secondary impacts such as: 0 Increased crime in the vicinity 0 Robbery of patients and robberies of the dispensaries themselves 0 Burglary of the dispensary 0 Increased DUls in the vicinity of the dispensaries 0 Increased drug dealing within the vicinity of the dispensaries 0 Individuals smoking marijuana within the vicinity of the dispensaries 0 Reports of negative impacts on neighboring businesses due to the criminal element being drawn to dispensaries 0 Resale of medical marijuana to individuals who do not have physician recommendations. City Council Report March 20, 2006 Interim Urgency Ordinance No. 1310 Page 3 . Staff and the City Attorney's office are working on a comprehensive report to the Council that will provide information regarding the actions taken by various jurisdictions and will provide information regarding the issues associated with medical marijuana dispensaries and regarding the uses of marijuana for medical purposes. City staff is continuing to seek out and gather additional information on local ordinances and relevant legal opinions. City staff has collected ordinances and code sections from a sampling of cities statewide. The information that has been collected will be used to prepare a study of potential code amendments to the City's land use regulations that will address this issue. More time is needed for staff to propose code amendments that would alleviate the threat to the public health, safety, and welfare. Staff will provide these options in more in-depth detail in a report to the City Council in time to implement the Council's direction prior to December 4, 2006. . Staff will provide information regarding the law affecting medical marijuana in California and will describe the options available to the Council. Staff will present this report to the Council at a noticed public hearing wherein staff will ask the Council for direction regarding these options. Those options are anticipated to include regulating the location of such dispensaries through zoning code amendments and potentially requiring a special permit; banning such dispensaries outright; or, taking no action. The following is a brief discussion of these options that staff is analyzing. ~ An ordinance to regulate dispensaries through standards and a conditional use permit or some other special permitting process is one option. Via this process a permit could be required that would establish that certain criteria be met such as establishing hours of operating, separation from school locations and other locations attractive to minors; notification of residents and owners within a certain distance of such uses; limitation of sales of other products; certain disclosures of suppliers; a security plan to be filed with the police among other stipulations, etc. ~ Another option is to prohibit dispensaries outright. There are some cities that have enacted such ordinances that contain definitions of "medical marijuana dispensaries" as distinct from other health-related facilities that are regulated under the Health and Safety Code. Ordinances such as these prohibit such uses to promote the health, safety, and welfare in the communities in which they are adopted. Some of these ordinances also note that such uses are in conflict with federal law and, therefore, the uses are banned. In some communities, these ordinances have been or are being challenged in court. ~ The City could take no action to regulate or prohibit dispensaries. In that case, it is possible that one or more dispensaries could be established in one or more of the City's commercial/industrial districts. City Council Report March 20, 2006 Interim Urgency Ordinance No. 1310 Page 4 Interim Urgencv Ordinance No. 1310 Adoption of Interim Urgency Ordinance No. 1310 would extend Ordinance No. 1309, a temporary moratorium on establishment and operation of medical marijuana dispensaries, within the City of Tustin for a period of ten (10) months and fifteen (15) days pending the completion of 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. Findings in support of the adoption of Interim Urgency Ordinance No. 1310 are included within the Ordinance. The City Attorney has reviewed and approved the form and content of the proposed Interim Urgency Ordinance No. 1310. Elizabeth A. BinsacK Director of Community Development Attachments: 1. Interim Urgency Ordinance No. 1310 2. February 6 2006 City Council Report and Ordinance No. 1309 3. Written Testimony Provided to the City Council on February 21, 2006 by Dana Jean and Timolin Burke S:\Cdd\CCREPORT\SeW Storage Moratorium Combined Report.doc Item: Interim Urgency Ordinance No. 1310 Attachment 1 Interim Urgency Ordinance No. 1310 ORDINANCE NO. 1310 AN INTERIM URGENCY ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, EXTENDING ORDINANCE NO. 1309, A TEMPORARY MORATORIUM ON THE LEGAL ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES WITHIN THE CITY OF TUSTIN FOR A PERIOD OF 10 MONTHS AND 15 DAYS PENDING THE COMPLETION OF 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, ordains: 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 m gm. 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. G. On February 6, 2006, the City Council adopted Ordinance 1309, an initial interim urgency ordinance, and found that medical marijuana dispensaries are not permitted uses in any zoning district in the City and expressly prohibited the establishment of any medical marijuana dispensary in the City for forty-five (45) days pending commencement of appropriate studies and consideration of alternative land use approaches for addressing the health, safety, and welfare issues associated with the regulation of medical marijuana dispensaries in the City. H. During the initial interim period established in City Ordinance 1309, the City Council and its Planning Department staff commenced the studies and reviews described in the Report filed with the City Council and considered by the City Council at its meeting of March 20, 2006. 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 marijuana club as described in People v. Peron (1997) 59 Cal.App.4th 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 m gm. SECTION 4. A medical marijuana dispensary is not currently 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. 2 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, 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. SECTION 9. This interim urgency ordinance shall be deemed an extension of Ordinance No. 1309 and shall extend the interim urgency regulations as provided in Ordinance No. 1309 and this interim urgency ordinance for an additional ten (10) months and fifteen (15) days and shall therefore continue in effect until February 6, 2007, 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 Ordinance No. 1309 and 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 20th day of March, 2006. DOUG DAVERT, MAYOR ATTEST: PAMELA STOKER, CITY CLERK 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 20th day of March, 2006, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: PAMELA STOKER, CITY CLERK Published: 4 Item: Interim Urgency Ordinance No. 1310 Attachment 2 February 6 2006 City Council Report and Ordinance No. 1309 AGENDA REPORT Agenda Item Reviewed: City Manager ~ Finance Director ~ MEETING DATE: FEBRUARY 6, 2006 FROM: SUBJECT: WILLIAM A. HUSTON, CITY MANAGER COMMUNITY DEVELOPMENT DEPARTMENT TO: 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 detemnined 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 fomn 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\lnterirn 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 Ordinance No. 1309 Page 1 of 4 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 marijuana club as described in People v, Peron (1997) 59 CaLApp 4th 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 appiicable 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 Ordinance No. 1309 Page 2 of 4 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. 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 DOUG DAVERT, Mayor ATTEST: PAMELA STOKER City Clerk Ordinance No. 1309 Page 3 of 4 STATE OF CALIFORNIA) COUNTY OF ORANGE) SS CITY OF TUSTIN ) I, Parnela Stoker, City Clerk of the City of Tustin, California hereby certify that the foregoing is a full, true and correct copy of Ordinance No. 1309 introduced and adopted at a regular meeting of the City Council of the City of Tustin duly held on February 6, 2006, of which meeting all of the members of said City Council had due notice and at which a majority thereof were present; by the following vote: COUNCILMEMBER AYES: DAVERT, HAGEN, AMANTE, BONE, KAWASHIMA (5) COUNCILMEMBER NOES: NONE (0) COUNCILMEMBER ABSTAINED: NONE (0) COUNCILMEMBER ABSENT: NONE (0) PAMELA STOKER, City Clerk Ordinance No. 1309 Page 4 of 4 Item: Interim Urgency Ordinance No. 1310 Attachment 3 Written Testimony Provided to the City Council on February 21, 2006 by Dana Jean and Timolin Burke I am Dana Jean and I work in the front office at LEI Patient Group Of LegaI Ease, Inc. I request an agenda item addressing the legitimacy of the sting protocol used by the Tustin Police Department as an excuse to raid us. In order to truly understand the importance of these implications, we will first look to the strategy we believe was used. Second, I will show that the Tustin Police Department has simply made a huge mistake. First, all police press releases specifically said that we sold to an undercover officer who used a "bad recommendation." However, we verified all physicians through the Califomia AMA's web-site, and we re-verified every patient recommendation by caIling the doctors office, which is exactly the same policy WaIgreen's pharmacy uses as well as every other dispensary in the state. Investigator John Cartwright told our manager that he was the undercover officer who had purchased from us. Being that LEI has all patient recommendations on a remote server, after the sting we reviewed our files and found that there wasn't anyone by the name of John Cartwright in our database. Normally, when police confiscate a dispensary's computers, as they did ours, the dispensary has no way to defend itself against what the police wish to claim, but this is not our case. We deduce that Officer Cartwright presented a police-quality phony ID at a doctor's office to get a recommendation issued for a phony identity, thus, technically making it a "bad recommendation." If this is correct, then the strategy of the sting was to ensure their ability to close down the dispensary, whether the dispensary operators verified the recommendation, or not. According to the press, LEI was to be charged with "Possession, with intent to sell" but Prop21S shields dispensaries and its employees from this charge. In addition, per state law, personal identity is the responsibility of the county and Orange County is out of compliance with SB420's mandate to join the California State Medical Marijuana Identification Card Program. Closing our legitimate business on the premise that we were unable to catch a phony ID has exposed the County of Orange to a possible civil suit seeking restitution for lost earnings for every day we are unfairly closed. A no-fail sting coupled with unfounded character defamation to the press has exposed the City of Tustin to a possible slander lawsuit. Additionally, all of this could have been avoided because in August of2005, we offered Lt. Jim Peery, head of Narcotics, to tour our facility and review our verification process, which he refused. We believe that progressive law enforcement involves communication, and not battle-making. If our offer had been accepted, we could have saved the expense and waste of police resources. Thank you for your time. Next Tustin City Council Meeting: March 6th, 7PM, 300 Centennial Way, Tustin, 92780. "PLEA TO ALLOW LEI PATIENT GROUP OF LEGAL EASE, INC. TO OPERATE DURING THE PRESENT MORITORIUM." I am Timolin Burke, manager of LEI Patient Group, and third-party advocate for the civil rights of patients in our group - rights vested by California laws: Prop215 and 8B420 - to purchase - medicine from a dispensary, rather than be driven to seek weaker, possibly-tainted product from drug dealers who operate out of Tustin cars on Tustin streets. This is the very threat to health and safety that these laws were enacted to spare the patient. I humbly request the council to repeal the Cease & Desist order. Then Tustin citizens can return to getting legal, quality medicine in a professional atmosphere of goodwill while the city conducts its research. Fully half of our Tustin patients are older who use it as an agent of pain control, with muscle relaxation and anti-inflammation, for arthritis, back problems and post-surgical chronic discomfort. They tell us, "Oh, thank goodness you're here, I live just down the street and now I don't have to drive to Long Beach anymore." We serve a primarily middle-class demographic, with extremes spanning all the way from paupers, to CEOs of international corporations. Those able to get to other dispensaries are doing that again, with displeasure. The Tustin patients who can't afford the gas, or who work too late to drive through traffic, or who just, plain, don't feel well enough to, will necessarily turn to local sources. As the police department found, we are a legal, legitimate business. We invite you to tour the facility. We recently hired a state-licensed security team and we seek your input and suggestions. 2-21-06 - Pie. to enter agenda item, Repeal Ibe Order! In conclusion to this point, the Cease & Desist Order has directly impinged on the health and safety of the plurality of Tustin citizens who use Medical Cannabis under doctor's order and by aegis of California law. By not repealing this Order, the City Council provides Tustin's illegal street dealers an environment in which to thrive, which is by definition deleterious to the health and safety of the greater Tustin public, for street dealers have no compunction against selling to minors. One more thing - I'd like to provide the perhaps surprising notion that LEI Patient Group is an asset to your city. Search your vision of the future - you know that eventually the Federal Government will reschedule this to the same level as other prescriptive medications. Synthetic THC has already been FDA-approved for wasting syndrome since 1985. When rescheduling occurs, our status will be like that of a specialized Walgreen's, and the Tustin City Council will be in regulatory control of what is presently the most popular dispensary between LA and San Diego. Members already tell us they come to us preferentially, even when they live closer to those cities. Yes - Tustin - steals foot- traffic from Long Beach, LA and San Diego. To this rapidly-growing market of mobile consumers with disposable income, Tustin is a destination. Every patient state-wide accesses California NORML's web-site and plans their travel accordingly. We bring good business to your town- consumers buying gas and cigarettes, eating a fine meal or grabbing a sandwich - watching a film at The Market while traffic settles down. If you expunge our dispensary from Tustin, another big dispensary will take over this demographic zone by opening in a neighboring city, a city that may not be as diligent as you, and Tustin will have no say as to how that dispensary operates. I exhort you to show your wisdom, by allowing us to remain open. Doing so preserves all vour options, including that of permanent control over this inevitable phenomenon and a remarkable opportunity for Tustin's future. Thank you for your time. 2-21-06 - Plea to enter agenda ;tem: Rcpeallhc Order! 2