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HomeMy WebLinkAbout10 - Interim Urgency Ordinance-Medical MarijuanaCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 10 April 24, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robin Clauson, City Attorney Ext. 3131, rclauson(a)city.newport- beach.ca.us Aaron Harp, Assistant City Attorney Ext. 3131, aharp(a)_city.newport- beach.ca.us SUBJECT: Report describing the measures taken to alleviate the conditions which led to the adoption of Interim Urgency Ordinance Nos. 2005 -7, 2005 -11, 2006 -010 regulating medical marijuana dispensaries RECOMMENDED ACTION: Receive and file the report. BACKGROUND: On May 24, 2005, after conducting a noticed public hearing, the City Council of the City of Newport Beach enacted Ordinance No. 2005 -7, an interim urgency ordinance making findings and establishing a temporary moratorium on the establishment and operation of medical marijuana dispensaries in the City. On June 28, 2005, the City Council adopted Ordinance No. 2005 -11 extending the moratorium ten (10) months and fifteen (15) days. On April 25, 2006, the City Council adopted Ordinance No. 2006 -10 extending the moratorium for one (1) year. Prior to the expiration of the interim urgency ordinance, the City Council must issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance. Accordingly, the City has prepared this report in satisfaction of the requirements of Section 65858. PUBLIC NOTICE: Public notice was provided in accordance with all applicable laws. Prep red by: Submitted by: &Ie-� (f , 9 --OL� A o .. , C 4 � Aaron Harp, Assistant City Attorney (rRobin Clauson, City Attorney Attachment: Report of the City Council of the City of Newport Beach on the Interim Urgency Ordinance Regulating Medical Marijuana Dispensaries REPORT OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ON THE INTERIM URGENCY ORDINANCE REGULATING MEDICAL MARIJUANA DISPENSARIES Introduction On May 24, 2005, after conducting a noticed public hearing, the City Council of the City of Newport Beach enacted Ordinance No. 2005 -7, an interim urgency ordinance making findings and establishing a temporary moratorium on the establishment and operation of medical marijuana dispensaries in the City. On June 28, 2005, the City Council adopted Ordinance N0. 2005 -11 extending the moratorium for ten (10) months and fifteen (15) days. On April 25, 2006, the City Council adopted Ordinance No. 2006 -10 extending the moratorium for one (1) year. Prior to the expiration of the interim urgency ordinance, the City Council must issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance. Accordingly, the City has prepared this report in satisfaction of the requirements of Section 65858. 11. Background to the Adoption of the Interim Urgency Ordinance Under the Controlled Substances Act, enacted by Congress in 1970, marijuana is classified as a Schedule I controlled substance. This classification is based on a determination that marijuana (1) has a high potential for abuse, (2), has no currently accepted use for medical treatment, and (3) 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. Use of marijuana is also prohibited under the "California Uniform Controlled Substances Act," passed in 1972. On November 5, 1996, California voters passed Proposition 215, the "Compassionate Use Act of 1996," 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. Shortly after the Proposition 215 passed, medical marijuana dispensaries began appearing in Oakland, San Francisco and Santa Cruz. The federal Drug Enforcement Agency (DEA) took an aggressive role to close these businesses as being in violation of federal law. This enforcement activity resulted in a number of significant court decisions. The first of these decisions was United States v. Oakland Cannabis Buyers Cooperative, et al. (2001) 532 U.S. 483. In that case, the United States Supreme Court held that there is no medical necessity exception to the prohibition against possession and use of marijuana under federal law, even when the patient is "seriously ill' and lacks alternate sources of relief. In People v. Mower (2002) 28Cal.4th 457, the California Supreme Court held that although Proposition 215 exempts qualified individuals from certain State marijuana laws, it does not grant an absolute immunity from arrest. Instead, it provides a limited immunity from prosecution, and may provide a basis for a pretrial motion to set aside an indictment or - 1 - a defense at trial. In 2003, the State legislature passed Senate Bill 420, effective January 1, 2004, which established the Medical Marijuana Program. This legislation creates a voluntary system for qualified patients and their caregivers to obtain identiflcation cards, issued by counties that will insulate them from arrest for violations of State law relating to marijuana. It does not expressly authorize establishment of medical marijuana dispensaries. Nevertheless, after passage of SB 420 a number of people opened, or attempted to open, medical marijuana dispensaries in cities throughout the state. In June 2005, the United States Supreme Court rendered an opinion in the case of Gonzales v. Raich (2005) 125 S.Ct. 2201. In the Raich case, federal agents seized and destroyed marijuana plants that were being grown for personal medical use. The plaintiffs sued to prohibit enforcement of the Controlled Substances Act to the extent that it interfered with their 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 Controlled Substances Act against these individuals because it exceeded Congressional authority under the commerce clause of the United State Constitution. The Supreme Court reversed, holding that the Commerce Clause does allow 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 effect of the Raich decision is that federal law enforcement officers may continue to enforce federal drug laws against Californians who cultivate or use medical marijuana. After receiving inquires from persons interested in establishing medical marijuana dispensaries, the City Council considered and enacted Ordinance No. 2005 -7 establishing a temporary moratorium on the establishment and operation of medical marijuana dispensaries in the City. The City Council adopted Ordinance Nos. 2005 -7/11 and 2006 -10 because it found that: (1) because a significant number of cities, including cities in the County of Orange, have prohibited or heavily regulated medical marijuana dispensaries, there was a substantially increased likelihood that such establishments would seek to locate in the City of Newport Beach; (2) 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; and (3) the decision in Gonzales v. Raich, 125 S. Ct. 2195 (2005) created a conflict between State and Federal Law. The City Council also found that issuing permits, business licenses, or other applicable entitlements providing for the establishment and /or operation of medical marijuana dispensaries, prior to: (1) the removal of any federal bans on the use of marijuana, (2) the City's completion of its study of the legality, potential impact, and regulation of such facilities; and (3) resolving any zoning conflicts based on the fact that no zoning existed 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 was thus necessary. -2- III. Measures Taken Since the Adoption of the Interim Urgency Ordinance A. Actions of Other Cities The City Attorney's Office has carefully reviewed the actions taken by other cities. Based on the information currently available, at least 40 cities and 2 counties have banned medical marijuana dispensaries. At least 24 cities and 7 counties have adopted ordinances to regulate medical marijuana dispensaries. Approximately 80 cities still have moratoriums in place. B. Legal Challenges to Ordinances that Ban Medical Marijuana Dispensaries Americans for Safe Access (ASA), the largest national grassroots coalition working solely to protect the rights of patients and doctors to use marijuana for medical purposes, filed suits against the following cities which adopted ordinances banning medical marijuana dispensaries: Concord, Susanville, and Pasadena. Based on currently available information, it is the understanding of the City Attorney's Office that the ASA cases against Concord and Susanville were dismissed before demurrers could be heard and that the case against Pasadena was never served. C. Cities with Ordinances Regulating Medical Marijuana Dispensaries Those cities that have allowed medical marijuana dispensaries have seen a number of negative impacts on their communities, despite their attempts to regulate secondary impacts. As previously described, marijuana use has been illegal for more than thirty years, and the street value remains such that an established illicit market highly correlated with other forms of crime continues to exist. Based upon subsequent research, these negative impacts continue. Crimes highly correlated with medical marijuana dispensary operations have been committed in surrounding communities. The following is a sample of individual types of cases that have occurred: 1. On June 30, 2005, a marijuana dispensary employee leaving work at the Collective Cannabis Club in Cherryland (one of six in unincorporated Alameda County) was leaving work when a masked gunman opened fire on his car. The Alameda County Sheriffs Department indicated that this was one of six such incidents reported at these clubs in the first half of 2005. 2. On August 8, 2005, three employees and three customers were tied up at a Hayward club during an armed robbery. 3. On October 7, 2005 and October 9, 2005, there were two burglaries of medical marijuana dispensaries in unincorporated Alameda County near Hayward. 4. Also in October of 2005, two juveniles were contacted after being observed near a dispensary wearing heavy coats and ski masks. A search revealed a replica 9mm pistol. Both juveniles were found to be in possession of marijuana. Additionally, investigations into illegal distribution of drugs have led enforcement -3- agencies to medical marijuana dispensaries from which drugs are being diverted either by "patient" resale to people without prescriptions, by armed robbery of facilities' stocks, or by active collusion of operators with dealers in the illegal market. For instance, on June 15, 2005, the head of the San Francisco Police Department's Bayview station noted that medical marijuana dispensaries had been used as a cover for illegal sales. On December 12, 2005, Drug Enforcement Administration agents raided 13 medical marijuana dispensaries in the San Diego area, indicating that the dispensaries had been operating as a front for the distribution of marijuana. D. Adoption of Ordinance No. 2007 -4 Given the federal prohibition on the possession and distribution of medical marijuana, it is the City Attomey's opinion that the operation of a medical marijuana dispensary would be prohibited by federal law. On February 27, 2007, the City adopted ordinance No. 2007 -4 which added Section 1.01.090 and provides as follows: "In no event shall any license, permit, or approval, including but not limited to, amendments, development plans, modification permits, site plan review, use permits, variances, coastal permits, or other entitlement, be granted for a use or activity that is illegal or unlawful under federal, state or City laws or regulations. The issuance or granting of any license, permit or approval under this Code shall not be deemed or construed to be a permit to conduct or to continue an illegal or unlawful business, or to conduct or continue a lawful business in an unlawful manner, or at a place prohibited by law or the ordinances of this City." Based thereon, the establishment of a medical marijuana dispensary in the City is not permitted. If in the future, if federal law creates a medical marijuana exception, the City Council is permitted by Government Code Section 65858 to adopt another interim urgency ordinance to protect the public safety, health, and welfare. The City Attomey would recommend the adoption of another interim urgency ordinance at that time so that additional analysis and regulations can be considered.