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HomeMy WebLinkAbout18 - Medical Marijuana Dispensaries MoratoriumCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 18 May 24, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Aaron C. Harp, Assistant City Attorney Ext. 3131, aharp(@city.newport- beach.ca.us SUBJECT: Interim Urgency Ordinance Establishing a Temporary Moratorium on the Establishment and Operation of Medical Marijuana Dispensaries ISSUE: Should the City adopt an interim urgency ordinance establishing a temporary moratorium on the establishment and operation of medical marijuana dispensaries? RECOMMENDED ACTION: Adopt the attached interim urgency ordinance placing a temporary forty -five (45) day moratorium on the establishment and operation of medical marijuana dispensaries. (Requires five Councilmembers' votes). BACKGROUND: In 1996 the voters of California approved by voter initiative "The Compassionate Use Act of 1996," also known as Proposition 215, and codified at Health & Safety Code Section 11362.5 et seq. The purpose of Proposition 215 was to allow people to obtain and use medical marijuana under certain specified circumstances. In 2003, the state legislature approved SB 420 which provided additional statutory guidance for those involved with medical marijuana use. One of the sections added to state law by this bill is California Health & Safety Code Section 11362.83, which provides "nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article." Hence, cities are authorized to enact rules and regulations with regard to medical marijuana consistent with California law. The City has received inquiries from individuals wanting to open medical marijuana dispensaries in the City of Newport Beach. One individual, Adam Powers, has asked for Proposed Interim Urgency Ordinance Regarding Medical Marijuana Dispensaries May 24, 2005 Page 2 information on what type of application would be required to open such a facility and what zone a medical marijuana dispensary could legally operate. Currently, the Newport Beach Municipal Code does not specifically address the regulation or location of medical marijuana dispensaries or list medical marijuana dispensaries as a permitted use in any zoning district. Section 20.05.010 of the Newport Beach Municipal Code provides that "the Planning Director shall determine whether a specific use shall be deemed to be within one or more use classifications or not within any classification in this Code." Pursuant to Section 20.05.020 of the Newport Beach Municipal Code, "any new use, or any use that cannot be clearly determined to be in an existing use classification, may be incorporated into zoning regulations by a Zoning Code text amendment, as provided in chapter 20.94." DISCUSSION: The Newport Beach Municipal Code does not specifically address the regulation or location of medical marijuana dispensaries. An increasing number of cities have adopted ordinances placing temporary moratoriums on such dispensaries. For instance, in the last few months the Cities of San Francisco, Modesto, Ontario, Huntington Beach, Lake Forest, Long Beach and West Hollywood have imposed moratoriums until the rules for the dispensaries can be clarified and /or developed. As more local cities regulate or ban medical marijuana dispensaries, it is increasingly likely that medical marijuana dispensaries may seek to locate in the City of Newport Beach in the immediate future. Currently, there appears to be a conflict between state and federal laws relating the legality of medical marijuana dispensaries. Although the State of California passed Proposition 215 in 1996, and then SIB 420 in 2003 (effective January 1, 2004), which allowed for the establishment of medical marijuana dispensaries under very limited circumstances, the United States Supreme Court in United States v. Oakland Cannabis Buyers' Cooperative, (2001) 532 U.S. 483 held that the federal Controlled Substances Act continues to prohibit marijuana use, distribution, and possession, and that no medical necessity exceptions exist to those prohibitions. Further, the U.S. Supreme Court is currently reviewing, and is due to issue its decision this summer, the case of Raich v. Ashcroft, (2003) 352 F.3d 1222, in which the 9th Circuit held that the federal Controlled Substances Act was likely unconstitutional. It is also important to note that where state and federal laws are in conflict or are inconsistent, the federal law will generally preempt the state law pursuant to the Supremacy Clause of the U.S. Constitution. Based on the apparent conflict in laws and the pending U.S. Supreme Court opinion resolving the conflict, the fact that federal preemption over the inconsistent laws currently seems to indicate that medical marijuana dispensaries may be illegal, the Proposed Interim Urgency Ordinance Regarding Medical Marijuana Dispensaries May 24, 2005 Page 3 establishment of a medical marijuana dispensary moratorium is appropriate until such time that the issue is resolved and /or clarified by the U.S. Supreme Court. Further, a moratorium is necessary to give the Planning Commission, the City Council, and the public an opportunity to determine the appropriateness of such facilities within the City of Newport Beach including, but not limited to, evaluating the legality of such facilities, the legal authority to establish such facilities, the desirability of such facilities, zoning conflicts which would be created by the establishment of these facilities and the extent of regulatory controls (e.g. location and operational controls), should such facilities be thought appropriate. The need for proper regulation of these facilities, if deemed to be legal and appropriate, is crucial so that these sites do not become magnets for non - medical marijuana sales, drug dealings and other crimes. Specifically, medical marijuana dispensaries have been established in several locations in California, and as a consequence, some local agencies have reported increases in illegal drug activity, illegal drug sales, robbery of persons leaving dispensaries, loitering around dispensaries, falsely obtaining "identification cards" to qualify for medical marijuana, and other increases in criminal activity. Recent examples include: men who kicked in the window of a medical marijuana dispensary in Oakland and tried to rob the dispensary; and, at another medical marijuana dispensary in Alameda County, thieves broke into the building and robbed the safe as well as persons present. The United States Department of Justice's (DOJ) California Medical Marijuana Information report has advised that large -scale drug traffickers have been posing as "care givers" to obtain and sell marijuana. Pursuant to Government Code § 65858, the City Council may, without following the procedures otherwise required prior to adoption of a zoning ordinance, adopt as an urgency measure an interim ordinance prohibiting any use that may be in conflict with the contemplated general plan, specific plan, or zoning proposal that the City Council, Planning Commission or the Planning Department is considering or studying or intends to study within a reasonable time. Under Government Code § 65858, any urgency ordinance measure shall require a four -fifths (4/5) vote of the City Council for adoption. Further, Section 412 of the City Charter provides that "an emergency measure for preserving the public peace, health, or safety, and containing a statement of the reasons for its urgency, may be introduced and adopted at one and the same meeting if passed by at least five affirmative votes." ENVIRONMENTAL REVIEW: Environmental review is not required under the California Environmental Quality Act (CEQA) pursuant to 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) of the CEQA Guidelines, Proposed Interim Urgency Ordinance Regarding Medical Marijuana Dispensaries May 24, 2005 Page 4 California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly and it prevents changes in the environment pending the completion of the contemplated municipal code review. PUBLIC NOTICE: Pursuant to Government Code § 65858, the City is not required to follow the procedures otherwise required prior to adoption of a zoning ordinance. ALTERNATIVES: Do not adopt an interim urgency ordinance establishing a temporary moratorium on the establishment and operation of medical marijuana dispensaries Prepared by: -A , #',� Aaron C. Harp, Assist rh City Attorney Subry�i y: Robin Clauson, City Attorney Attachment: Interim Urgency Ordinance Establishing a Temporary Moratorium on the Establishment of Medical Marijuana Dispensaries ORDINANCE NO. 2005- AN INTERIM URGENCY ORDINANCE OF THE CITY OF NEWPORT BEACH, CALIFORNIA, MAKING FINDINGS AND ESTABLISHING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES WHEREAS, Section 200 of the City Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; and WHEREAS, Government Code Section 65858 provides that for the purpose of protecting the public safety, health and welfare, the City Council may adopt, without following the procedures otherwise required prior to the adoption of a zoning ordinance, as an urgency measure, an interim ordinance, by a vote of four -fifths (4/5) majority, prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time; and WHEREAS, Section 412 of the City Charter provides for the adoption as an emergency measure an interim ordinance to preserve the public peace, health or safety by a vote of at least five (5) City Councilmembers; and WHEREAS, under the Newport Beach Municipal Code, a question has been posed regarding what type of application would be required to open a medical marijuana dispensary and what zone a medical marijuana dispensary could legally operate. NOW, THEREFORE, the Newport Beach City Council does hereby ordain as follows: SECTION 1: Findings. A. In 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code Section 11362.5, et seq., and entitled the Compassionate Use Act of 1996 ( "the Act'). B. The intent of Proposition 215 was to enable persons who are in need of medical marijuana for medical purposes to obtain and use it under limited, specified circumstances. C. On January 1, 2004, SB 420 went into effect. SB 420 was enacted by the Legislature to clarify the scope of the Act and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Act. D. The Newport Beach Municipal Code does not address or regulate in any manner the existence or location of medical marijuana dispensaries. E. After receiving inquiries from persons interested in establishing medical marijuana dispensaries, numerous other cities in the State of California have adopted ordinances prohibiting or heavily regulating such dispensaries. Because a significant number of cities, including cities in the County of Orange, have prohibited or heavily regulated medical marijuana dispensaries, there is a substantially increased likelihood that such establishments will seek to locate in the City of Newport Beach in the near future. F. Other California cities that have permitted the establishment of medical marijuana dispensaries have witnessed an increase in crime, such as burglaries, robberies, and sales of illegal drugs in the areas immediately surrounding such dispensaries. G. The United States Supreme Court addressed marijuana use in California in United States v. Oakland Cannabis Buyers' Cooperative, (2001) 532 US 483. The U.S. Supreme Court held that the federal Controlled Substances Act continues to prohibit marijuana use, distribution, and possession, and that no medical necessity exception exists to these prohibitions. Further, the U.S. Supreme Court is currently reviewing the California case of Raich v. Ashcroft, (2003) 352 F.3d 1222, and is considering the validity of the federal Controlled Substances Act and should be rendering its decision this summer. Therefore, it appears there is currently a conflict between federal laws and California laws regarding the legality of medical marijuana dispensaries, which the U.S. Supreme Court should be resolving in an opinion due this summer. H. To address the apparent conflict in state and federal laws, as well as the community and statewide concerns regarding the establishment of medical marijuana dispensaries, it is necessary for the City to study the potential impacts such facilities may have on the public health, safety, and welfare. Based on the foregoing, the City Council finds that issuing permits, business licenses, or other applicable entitlements providing for the establishment and /or operation of medical marijuana dispensaries, prior to (1) the U.S. Supreme Court resolving the conflict in state and federal laws on the subject, (2) the City's completion of its study of the legality, 7 potential impact, and regulation of such facilities; and (3) resolving any zoning conflicts based on the fact that no zoning currently exists in the City for such dispensaries, would pose a current and immediate threat to the public health, safety, and welfare, and that a temporary moratorium on the issuance of such permits, licenses, and entitlements is thus necessary. SECTION 2: Imposition of Moratorium. A. In accordance with the authority granted the City of Newport Beach by the City Charter and Government Code Section 65858, from and after the date of this ordinance, no use permit, variance, building permit, business license or other applicable entitlement for use shall be approved or issued for the establishment or operation of a medical marijuana dispensary for a period of forty -five (45) days. B. For purposes of 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 medical marijuana to two or more of the following: a qualified patient, a person with an identification card, or a primary caregiver. For purposes of this ordinance, the terms "primary caregiver," "qualified patient," and "person with an identification card" shall have the same meaning as that set forth in Health and Safety Code Section 11362.5, et seq. C. This ordinance is an interim urgency ordinance adopted pursuant to the authority granted to the City of Newport Beach by the City Charter and Government Code Section 65858, and is for the immediate preservation of the public health, safety, and welfare. The facts constituting the urgency are: (1) California cities that have permitted the establishment of medical marijuana dispensaries have found that such dispensaries have resulted in negative and harmful secondary effects, such as an increase in crime, including robberies, burglaries, and sales of illegal drugs in the areas immediately surrounding medical marijuana dispensaries; (2) After receiving inquiries from persons interested in establishing medical marijuana dispensaries, numerous other cities in California, including cities in the County of Orange, have adopted ordinances prohibiting or heavily regulating such dispensaries, .and because a significant portion of the region has prohibited or heavily regulated medical marijuana dispensaries, there is a substantially increased likelihood that such establishments will seek to locate in the City of Newport Beach; Cl (3) The City of Newport Beach does not currently have standards in its Municipal Code relating to the location, operation, and concentration of medical marijuana dispensaries within the City; (4) Absent the adoption of this interim urgency ordinance, the establishment and operation of medical marijuana dispensaries in the City of Newport Beach would result in the negative and harmful secondary effects other cities have experienced, as identified above; (5) Currently the state and federal laws relating to medical marijuana dispensaries appear to be in conflict, and the United States Supreme Court is due to render an opinion to clarify and resolve this apparent conflict this summer; and (6) As a result of the conflict in state and federal laws on the matter, coupled with negative and harmful secondary effects associated with medical marijuana dispensaries, the current and immediate threat such secondary effects pose to the public health, safety, and welfare, and the zoning conflicts that would be created by the establishment and operation of a medical marijuana dispensary, it is necessary to establish a temporary, forty -five (45) day moratorium on the establishment and operation of new medical marijuana dispensaries in the City, pending resolution of the conflict of laws by the U.S. Supreme Court, completion of the City's study of the legality, potential impacts and regulation of medical marijuana dispensaries, and possible amendments to the City's zoning ordinances. SECTION 3: Planning Study. The Planning Department with the assistance of the City Attorney's Office is directed to analyze the appropriateness of such facilities within the City of Newport Beach, including but not limited to, evaluating conflicts in state and federal law, the legality of such facilities, the legal authority to establish such facilities, the desirability of such facilities, and the extent of regulatory controls, should such facilities be thought appropriate. SECTION 4: Amendments to Ordinance. The City Council by ordinance after notice of public hearing, by the affirmative vote of at least four -fifths (4/5) of the voting City Council Members may modify, amend, delete or add to this ordinance upon a finding that such action will implement and enforce the goals, policies, and purposes of this Ordinance. 10 SECTION 5: Compliance with California Environmental Quality Act. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to 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) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; and it prevents changes in the environment pending the completion of the contemplated municipal code review. SECTION 6: Waiver. The City, on a case by case basis, shall have the authority, upon a showing of good cause by an applicant, to waive the interim prohibition /moratorium imposed by this ordinance. Good cause shall mean a factual and evidentiary showing by the applicant that the interim prohibition /moratorium, if not waived, will deprive the applicant of substantially all reasonable use of his /her property. SECTION 7: Urgency Ordinances; Extension. This interim urgency ordinance shall by operation of law be of no further force and effect forty five (45) days from and after the date of this adoption on May 24, 2005; provided, however, that after notice of public hearing the City Council Members may by a four - fifths (4/5) of the voting City Councilmembers extend this interim or urgency ordinance for an initial period of time up to ten (10) months and fifteen (15) days. Thereafter, after hearing a further one (1) year extension is also permitted. SECTION 8: Severability. The City Council hereby declares that if any section, subsection, sentence, clause or phrase of this Ordinance is, for any reason, held to be invalid or unconstitutional such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION 9: Effective Date. This ordinance is hereby declared to be an urgency measure and shall be enforced and be in effect immediately upon its adoption. 5 SECTION 10: Publication. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City of Newport Beach within fifteen (15) days of its adoption. This Ordinance was introduced and adopted as an urgency measure at a regular meeting of the City Council of the City of Newport Beach held on the day of , 2005, and adopted on the day of , 2005, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES,COUNCILMEMBERS ABSENT, COUNCILMEMBERS MAYOR ATTEST: CITY CLERK F: \users \cat \shared \Ordinance \Med MariDis pensa ries \05.12.05.doc