HomeMy WebLinkAbout21 - Establishment & Operation of Medical Marijuana DispensariesCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 21
April 25, 2006
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Aaron C. Harp, Assistant City Attorney
Ext. 3131, aharp(cDcity.newport- beach.ca.us
SUBJECT: Interim Urgency Ordinance Extending a Temporary Moratorium on the
Establishment and Operation of Medical Marijuana Dispensaries
ISSUE:
Should the City extend the interim urgency ordinance establishing a temporary
moratorium on the establishment and operation of medical marijuana dispensaries?
RECOMMENDED ACTION:
Adopt the attached interim urgency ordinance extending the temporary moratorium on
the establishment and operation of medical marijuana dispensaries for one (1) year.
BACKGROUND:
On May 24, 2005 at a regular meeting of the City Council, the City Council adopted
Ordinance No. 2005 -7 imposing a moratorium on the establishment and operation of
medical marijuana dispensaries. On June 28, 2005, Ordinance No. 2005 -7 was
extended for ten (10) months and (15) days by the adoption of Ordinance No. 2005 -11.
On June 6, 2005, the United Supreme Court decided Gonzales v. Raich, 125 S. Ct.
2195 (2005), holding that federal laws that ban the use of marijuana for medical
purposes are constitutional. Specifically, the Court found no legally recognizable
medical necessity exception under Federal law to the prohibition on the possession,
use, manufacture, or distribution of marijuana. Therefore, while medical marijuana may
be cultivated, used, and dispensed under State law to qualified patients by primary
caregivers, such activity is illegal under Federal law.
On June 6, 2005, California Attorney General Bill Lockyer issued an opinion that the
decision in Gonzales did not overturn California law permitting the use of medical
marijuana and that Californian's should contact their Congressional Representatives
and Senators and ask them to take a fresh look at the Federal laws that ban its use.
Proposed Interim Urgency Ordinance Regarding
Medical Marijuana Dispensaries
April 25, 2006
Page 2
DISCUSSION:
With the adoption of Ordinance Nos. 2005 -7/11, the City Council found that
establishment of medical marijuana dispensaries in the City without regulatory controls
in place may adversely impact the public health, safety, and general welfare of City
residents.
Staff needs more time to further study: (1) whether Federal law preempts California
medical marijuana statutes; (2) whether California law permits the establishment of
commercial facilities designed to dispense marijuana; (3) whether it is appropriate to
issue land use entitlements for a use that is unlawful under Federal law; (4) what impact
would be caused by these facilities if these facilities are permitted; and (5) what
regulations are necessary to protect the public health, safety, and welfare if these
facilities are permitted. These issues are currently the subject of litigation and judicial
determinations expected within the next year should resolve the uncertainty created by
the Raich decision.
If medical marijuana dispensaries are determined to be a permitted use, the City will
need to determine the proper regulation of medical marijuana dispensaries to reduce or
minimize the ill effects of these establishments noted by other cities that currently
provide for their operations. Specifically, many cities in California have allowed for the
establishment of medical marijuana dispensaries, and as a result, have reported
increases in criminal activity in the immediate and surrounding areas around such
establishments. Specifically, the Declarations of Sergeant Robert McMahon of the Los
Angeles County Sheriffs Department, Lieutenant Dale Amaral of the Alameda County
Sheriffs Department, and Sergeant Tim Miller of the Anaheim Police Department, all of
which are attached hereto, document the negative secondary effects of these
dispensaries.
Pursuant to Government Code § 65858, the City Council may, after notice pursuant to
Government Code Section 65090 and public hearing, extend an interim ordinance
adopted pursuant to Government Code Section 65858 by a vote of four -fifths (4/5)
majority of the members of the City Council. 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 (5) 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
April 25, 2006
Page 3
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:
Public notice was provided in accordance with all applicable laws.
ALTERNATIVES:
Do not adopt the ordinance extending the interim urgency ordinance establishing a
temporary moratorium on the establishment and operation of medical marijuana
dispensaries for one (1) year.
Prepared by:
C�" (f - ff
Aaron L Harp, Assistant City Attorney
Submitted by:
Q1n cc_
Robin Clauson, City Attorney
Attachment: Interim Urgency Ordinance Extending a Temporary Moratorium on the
Establishment of Medical Marijuana Dispensaries
Declarations of Robert McMahon, Dale Amaral, and Tim Miller
F fuserslcat lshared\CCStaffReports\Med Mad Dis p Ext04-25. d oc
ORDINANCE NO. 2006-
AN INTERIM URGENCY ORDINANCE OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, EXTENDING A TEMPORARY
MORATORIUM ON THE ESTABLISHMENT AND OPERATION
OF MEDICAL MARIJUANA DISPENSARIES
WHEREAS, on May 24, 2005, at a regular meeting of the City Council, the City
Council adopted Ordinance No. 2005 -7 imposing a moratorium on the
establishment and operation of medical marijuana dispensaries; and
WHEREAS, on June 28, 2005, at a regular meeting of the City Council, the City
Council adopted Ordinance No. 2005 -11 extending the moratorium on the
establishment and operation of medical marijuana dispensaries for ten (10)
months and fifteen (15) days; and
WHEREAS, the purpose of this interim urgency ordinance is to extend the
moratorium on the establishment and operation of medical marijuana
dispensaries for one (1) year to permit staff to continue to study: (1) whether
Federal law preempts California medical marijuana statutes; (2) whether
California law permits the establishment of commercial facilities designed to
dispense marijuana; (3) whether it is appropriate to issue land use entitlements
for a use that is unlawful under Federal law; (4) what impact would be caused by
these facilities if these facilities are permitted; and (5) what regulations are
necessary to protect the public health, safety, and welfare if these facilities are
permitted; and
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 after notice pursuant
to Government Code Section 65090 and public hearing, the City Council may
extend an interim ordinance adopted pursuant to Government Code Section
65858 by a vote of four -fifths (4/5) majority of the members of the City Council;
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 seriously ill Californians to
legally possess, use and cultivate marijuana for medical use under limited,
specified circumstances in accordance with State law.
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. As a result of Proposition 215 and SB 420, individuals have established
medical marijuana dispensaries in various cities.
E. Other California cities that have permitted the establishment of medical
marijuana dispensaries as a commercial or retail use have witnessed an
increase in crime, such as burglary, robbery, loitering around
dispensaries, increased pedestrian and vehicular traffic and noise, and the
sale of illegal drugs in the areas immediately surrounding such
dispensaries.
F. Based on the experience of other cities, it is reasonable to conclude
similar negative effects on the public health, safety, and welfare will occur
in Newport Beach due to the establishment and operation of medical
marijuana dispensaries.
G. On June 6, 2005, the United States Supreme Court decided Gonzales v.
Raich, 125 S.Ct. 2195 (2005). The Supreme 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.
H. Because Federal law prohibits the sale, use, and possession of marijuana,
the Newport Beach Municipal Code does not address or regulate in any
manner the existence or location of medical marijuana dispensaries.
2
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 Newport Beach Municipal code does
not currently regulate in any manner the existence or location of medical
marijuana dispensaries, and the experience of other cities with such
dispensaries shows the 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.
J. To properly address the above - described concerns regarding 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, the City needs additional time to
continue to study: (1) whether Federal law preempts California medical
marijuana statutes; (2) whether California law permits the establishment of
commercial facilities designed to dispense marijuana; (3) whether it is
appropriate to issue land use entitlements for a use that is unlawful under
Federal law; (4) what impact would be caused by these facilities if these
facilities are permitted; and (5) what regulations are necessary to protect
the public health, safety, and welfare if these facilities are permitted.
K. Based on the foregoing, the City Council finds that issuing permits,
certificate of use and occupancy 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 medical marijuana dispensaries; 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 to 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, certificate
of use and occupancy 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 one (1) year.
3
B. For purposes of this ordinance, "medical marijuana dispensary" shall
mean any commercially operated 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 "a 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's health, safety, and welfare. The facts constituting the urgency
a re:
(1) Federal law currently bans the use of marijuana and medical
marijuana dispensaries which is in conflict with California law that
permits the use of medical marijuana, in specified circumstances;
(2) 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;
(3) The City does not currently have standards in its Municipal Code
relating to the location, operation, and concentration of medical
marijuana dispensaries within the City of Newport Beach;
(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; and,
(5) 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 of 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 extend the temporary moratorium adopted by
Ordinance 2005 -7 and extended by Ordinance 2005 -11 for one (1)
year prohibiting the establishment and operation of new medical
4
marijuana dispensaries in the City, pending resolution of the conflict
between state and federal laws, 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 continue to analyze: (1) whether Federal law preempts California
medical marijuana statutes as applied to municipal zoning and permitting of
medical marijuana dispensaries; (2) whether California law permits the
establishment of commercial facilities or retail sales operations designed to
dispense marijuana; (3) whether it is appropriate to issue land use entitlements
for a use that is unlawful under Federal law; (4) what impact would be caused by
these facilities if these facilities are permitted; and (5) what regulations are
necessary to protect the public health, safety, and welfare if these facilities are
permitted.
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 Councilmembers 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.
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: Urgency Ordinances; Extension.
This interim urgency ordinance shall by operation of law be of no further force
and effect one (1) year from and after the date of this adoption on April 25, 2006.
SECTION 7: 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
5
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 8: Effective Date.
This ordinance is hereby declared to be an urgency measure and shall be
enforced and be in effect immediately upon its adoption.
SECTION 9: 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 2006, and adopted on the day of , 2006,
by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT, COUNCILMEMBERS
u_ V rou-
ATTEST:
CITY CLERK
F: \users \cat \shared \Ordinance \Med MariDispensaries \04.25.06.doc
.0
V
I peclarution of Sergeant Robert McMahon
2 I, Sergeant Robert McMahon, declare:
3 1. 1 am a Sergeant in the Los Angelis County Sheriffs Dopattutenl. I am assigned to
1 the Nnrcotics Bureau, West Hollywood Station and make this declaration in support of Los
5 Aneelcs County's Reply Brief' fn Support of Preliminary Injunction.
6 2. Since January of 2004, there have been about 6 to.8 known medical marijuana
7 dispensaries operating in West Hollywood. Scvcral of the dispensaries have had calls for service,
8 each reporting various criminal activity suspected or having occurred at the location.
9 3. Since January, 2004, the dispensary operating at 7906 Santa Monica Blvd., West
10 Hollywood has had Angie calls fur service. On lanumy 10, 2004 a call came in reporting a PC
I 1 245(A)(1) Assault with a deadly wcapou anti it PC 594 Vandalism. On June 3, 2004 a call cants in
12 repotting i Obstruction of street, sidewalk or other place open to public.
1 ± 4. From June 21, 2004, the dispensary operating at 7213 Santa Monica Blvd., West
14 144M)nvood, "LA Patients and Caregivers ", has had 3 calls tbr'scrvice. Ou 14a ruary 19, 2005, there
15 was a 211 (robbery with a fircurnt) repot wd to have occurred The incident occurred at 6:15 a.m.
16 Seven witnesscs reported that one of the 2 SlUipeCts pointed a handgun at one of the witnesses and
17 ordered several of the witnesses into the rear of the building where they were packaging medical
18 marijuana for sale to patiouts.
19 S. The dispensary operating at 7828 Santa Monica Blvd., West Hollywood, doing
20 business as "Alternative Horbal Health Services" has had to call the LA County Sheriff on two
21 occasions. On May 15, 2005, there was a 211 and a 245(A)(1), Assault with a deadly weapon
22 rapuilVd to have nueurrcd. Ttic incidew happeaud :It 4:25 p.m. during normal business hours.
23 Irour of the five suspects were armed with handguns and threatened several witnesses. One of the
24 victims reported being "piswl'whippud" when he told the suspect he was unable to get him into the
2` Salo.
:6
I InA.305583.1
Zd WC£B:M SBBZ LZ 'Unf T6EZ -8SE 6TE: 'ON Xtld nHa6la 3rII10313ajzi I63HS QHM: W08-4
I
4
5
6
7
8
9
10
Il
12
17
14
1.5
16
17
1H
19
20
21
22
23.
24
25
26
27
28
0 0
(i. 'mc. dispensary located at 12091_a Brea Ave., West Hollywood, has had two
mquests fur service. Purthur, on May 6, 2005, LAPD served a scorch warrant at this location baited
on probable cause and presented befu c the Ilonumble Judge S. Smith, Los Angelus County
Superior Cuw'1.
7. The above facts arc within my persunal knowledge and I am competem to teslily to
their truth if called us a witness.
t declare under of petju ry under laws of State of California that the forgoing is true and
correct.
Executed this 27th day of June, 2005.
1111A.VI5553. I
£d Wbto:eo Soo? LZ 'unf
Sergennt Rohurt McMahon
Los Angeics Cuuttty Sheriff
_2
t6£2-8S£ 0t£: 'ON XUA nu38na aoiiD313ajjta3HS aHm: W063
IO /Ll /LVVp 14:Y, fna Jl" VV, J"y"
08/27/05 12:37 FAX 215 687 882
10
111
12
13
14
15
16
17
18
19
20
71
22
23
24
25
26
27
28
PROBATE DIVISION • ®002
Declaration of Lieutenant Date Amaral
I, Lieutenant Dale Amara), declare:
1. I am a Lieutenant in the Alameda County Sheriffs Department. I am in charge of
the investigating units of the Eden Township Subdivisions of the Alameda County Sheriffs
Department. All of the medical marijuana dispensaries in the unincorporated areas of the County
fall under my jurisdiction. I make this declaration in support of Los Angeles County s Reply Brief
In Support of Preliminary Injunction.
2. Since January of 2005, there have been four reported incidents of criminal activity
that have occurred in Alameda County at or near a medical marijuana dispensary.
3. On January 12, 2005, Alameda County Sheriff deputies responded to a report of
211 (strong arm robbery) that occulted at 159' Avenue and East 14`h Street, San Leandro,
California. The incident involved a patron of a business operating as a medical marijuana
dispensary and doing business as "The Health Center" located at 15998 East 1411 Street, San
Leandro, California_ After malting a purchase from The Health' Center, the patron was robbed by
two suspects less than a quarter mile away from The Health Center. The incident occurred at
around 5:40 p.m.
4. On February 6, 2005, Alameda County Sheriff deputies responded to a report of
211 (armed robbery) that occurred at 21222 Mission Boulevard, Hayward, California. The
incident involved a business operating a medical marijuana dispensary and doing business as
"Compassionate Collective of Alameda County" (CCAC). The incident occurred around 4:50 p.m.
during normal business hours inside CCAC. Two suspects both armed with handguns entered
CCAC and took marijuana and cash. The victims of the robbery included the security guard of
CCAC. Several employees of CCAC were threatened by the two armed suspects.
5. On April 27, 2005, Alameda County Sheriff deputies responded to a report of 459
(burglary) that occurred at 15998 East 14°' Street, San Leandro, California_ The incident involved
a business operating a medical marijuana dispensary and doing business as "The Health Center"
The incident occurred at around 3:05 a.m. Someone had entered The Health Center and triggered
the alarm.
HOMD64at.0
06/27/2005 RON 12:41 (TX /RX NO 71611 ®00;
1
2
3
4
5;
6
7
8
91
10
111
12
13
14
15
16
17
18
19
20
71
22
23
24
25
26
27
28
PROBATE DIVISION • ®002
Declaration of Lieutenant Date Amaral
I, Lieutenant Dale Amara), declare:
1. I am a Lieutenant in the Alameda County Sheriffs Department. I am in charge of
the investigating units of the Eden Township Subdivisions of the Alameda County Sheriffs
Department. All of the medical marijuana dispensaries in the unincorporated areas of the County
fall under my jurisdiction. I make this declaration in support of Los Angeles County s Reply Brief
In Support of Preliminary Injunction.
2. Since January of 2005, there have been four reported incidents of criminal activity
that have occurred in Alameda County at or near a medical marijuana dispensary.
3. On January 12, 2005, Alameda County Sheriff deputies responded to a report of
211 (strong arm robbery) that occulted at 159' Avenue and East 14`h Street, San Leandro,
California. The incident involved a patron of a business operating as a medical marijuana
dispensary and doing business as "The Health Center" located at 15998 East 1411 Street, San
Leandro, California_ After malting a purchase from The Health' Center, the patron was robbed by
two suspects less than a quarter mile away from The Health Center. The incident occurred at
around 5:40 p.m.
4. On February 6, 2005, Alameda County Sheriff deputies responded to a report of
211 (armed robbery) that occurred at 21222 Mission Boulevard, Hayward, California. The
incident involved a business operating a medical marijuana dispensary and doing business as
"Compassionate Collective of Alameda County" (CCAC). The incident occurred around 4:50 p.m.
during normal business hours inside CCAC. Two suspects both armed with handguns entered
CCAC and took marijuana and cash. The victims of the robbery included the security guard of
CCAC. Several employees of CCAC were threatened by the two armed suspects.
5. On April 27, 2005, Alameda County Sheriff deputies responded to a report of 459
(burglary) that occurred at 15998 East 14°' Street, San Leandro, California_ The incident involved
a business operating a medical marijuana dispensary and doing business as "The Health Center"
The incident occurred at around 3:05 a.m. Someone had entered The Health Center and triggered
the alarm.
HOMD64at.0
06/27/2005 RON 12:41 (TX /RX NO 71611 ®00;
08/27/05 12:37 FAX 213 687 88 PROBATE DIVISION ® 003
II
11
2
3'
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18,
19
20
21
22
23
24
25
26
27
28
6. On May 24, 2005, Alameda County Sheriff deputies responded to a report of 211
(robbery) that occurred at 16360 Foothill Boulevard, San Leandro, California. The incident
involved a patron of a business operating a medical marijuana. dispensary and doing business as "A
Natural Source ". After making a purchase, the patron of A Natural Source was robbed by three
suspects in the rear parking lot of A Natural Source.
The above facts are within my personal knowledge and I am competent to testify to their
truth if called as a wimess.
I declare under of perjury under laws of State of California that the forgoing is true and
correct.
Executed this 27th day of June, 2005.
HOA.1U6483.1
Lieutenant Dale Amaral
Alameda County Sheriffs Department
-2-
08/27/2005 MON 12:41 1TI /RI NO 71611 2003
JUIV GI'cYJCi./ +1 11
• 0
1 Declaratiou olSerseant Tim Miller
2 1, Sergeant Tim Miller, declare:
3 1. I am the Supervisor of the Anaheim Police Department's Street Narcotic Unit. I
4 make this declaration in support of Los Angeles County's Reply Brief In Support of Preliminary
5 Injunction.
6 2. As the Supervisor of our Department's Street Narcotic Unit, last month I prepared a
7 report in support of the City of Anaheim's proposed Medical Marijuana Emergency Ordinance.
8 3. The contents of the report, which is described in more detail below, provides
9 background information regarding Proposition 215, codified under the California Health and
10 Safety Code as 11362.5 and Senate Bill 420, which clarifies the scope of Proposition 215; the
11 availability of marijuana; how other jurisdictions are dealing with the medical mar[juana issues;
12 and the impact that medical marijuana is having on Anaheim.
13 PROPOSITION 215
14 4. Proposition 215, otherwise known as the Compassionate Use Act of 1996, was
15 approved by California voters to "ensure seriously ill Californians the right to obtain and use
16 marijuana for medical purposes where that medical. use is deemed appropriate and has been
17 recommended by a physician who has determined that the person's health would benefit from the
18 use of marijuana in the treatment of [specified illnesses]." This proposition is codified under the
19 California Health and Safety Code ( "H & S ") as 11362.5, and allows personal possession and
20 cultivation of marijuana for medical purposes. This section does not provide the patient with
21 absolute immunity from arrest, but provides limited immunity allowing the patient to raise a
22 medical use defease.
23 As originally enacted, there is no specificity as to the strength, quality or quantity of
24 marijuana to be used for medical purposes, as long as it is related to the patient's medical need and
2S is recommended by a physician.
26 Senate Bill 420 was signed into effect January 1, 2004, to clarify the scope of
27 Proposition 215, and to allow cities and counties to adopt and enforce rules and regulations
28 1 regarding the Act. SB 420 also specifies, under 11362.77 H &S an acceptable amount - eight
HQd.3D1A L 1
—, nen f
JUN -27 -2005 08:39 213 687 8822 96i P.02
�Uiv— er —roec� + +• ++
10
11
12
13
14
15
16
17
18
19
A
21
2;
21
24
2'
2(
2',
2f
• 1*
ounces of dried marijuana plus 6 mature or 12 immature plants per qualified patient.
There is still no legislation dealing with strength or quality of marijuana. Since the
origin of marijuana is also unregulated by the government, it can be obtained by patients through a
variety of sources. It may be obtained through a health care provider, a cannabis club, cooperative,
or illicitly on the black market-
Delta 9 Tetrahydrocantdbinol or THC, is the active ingredient in marijuana. Its
presence in marijuana varies greatly depending on a variety of factors, such as geographic origin,
plant lineage, method of growth, eta The percentage of yHC present in marijuana commonly
available, ranges from 3.5% to almost 40 %. The effects marijuana has on a user vary, greatly
depending upon the strength of the marijuana (amongst other factors)-
AVAn ABILTC�C
5. Proposition 215 and SB 420 do not specifically deal with the issue of "where"
patients .obtain marijuana for medical purposes.
warehouses or retail outlets for medical marijuana. The law only
Simply put, there are no government owned or
operated marijuana cultivations,
designates a "qualified patient" or "primary caregiver" to grow, obtain or possess medical
marijuwa. If a "qualified patient" or "primary caregiver" does not cultivate marijuana, it is
obtained either illicitly by the patient or Caregiver or someone else who supplies it to them.
patients may also purchase marijuana through mail order services from Northern California and
other regions.
Patients attempting to obtain marijuana legally may do so through over two dozen
medical marijuana dispensaries, cannabis clubs, collectives and cooperatives in Southern
California. Numerous dispensaries, etc. exist in Los Angeles County along *'th at least two in
Orange County, including one currently operating in Anaheim. The number of businesses appears
to be expanding at a rapid rate in both Los Angeles and Orange Counties. Many of the
dispensaries and primary caregivers will deliver the marijuana to the patient at home or a care
facility.
xoA.rosnr.r
'2'
JLAl -27 -2005 0839
213 687 8822 - 96% P.03
1 OTf�J'I1RIS�j;CTIONS
2 6. Different jurisdictions have dealt with the medical marijuana issues in a variety of
3 ways throughout the state. One jurisdiction in Los Angeles County researched the concept of
4 having a City operated and regulated dispensary, however the project was discontinued prior to
5 implementation. Recently, the cities of LAke Forest, Ontario, Woodland (Northern California),
6 Stockton, Simi Valley and Redlands have all established a 45 -day moratorium on businesses
7 selling medical marijuana, allowing the cities additional time to further decide future action
8 regulating or prohibiting medical marijuana dispensaries.
9 The City of Huntington Beach adopted a temporary moratorium on medical
10 marijuana facilities in February, and is now considering regulating the establishment and operation
11 of such facilities. The Northern California Cities of Oakland, Hayward, Elk Grove, Citrus
12 Heights, Roseville, Auburn, Plymouth and Dixon have adopted ordinances to regulate the
13 establishment and operation of medical marijuana facilities.
14 in July 2004, the Northern California City of Rocklin approved and adopted a
15 zoning ordinance effectively prohibiting medical marijuana dispensaries in their jurisdiction. This
16 ordinance has not been challenged to date. The City of Cost Mesa has drafted an ordinance
17 prohibiting medical marijuana dispensaries in their jurisdiction, and the document is pending
18 review for City Council approval.
19 IMPpACTON ANAITEIIV(
20 7. The "420 Primary Caregivers" at 421 N. Brookhurst Street, Suite #130, Anaheim,
21 obtained a business license from the City of Anaheim on May 19, 2004. The type of business was
22 listed as a primary caregiver. By the fall of 2004, the Police Department began to receive
23 complaints from neighboring businesses in the multi -unit complex regarding "420 Primary
24 Caregivers." The complaints centered around the ongoing sales of marijuana to subjtets who did
25 not appear to be physically ill, the smell of marijuana inside the ventilation system in the building,
26 and the repeated interruption to neighboring businesses. in January 2005, the "420 Primary
27 Caregivers" business and employees were robbed at gun point by three masked suspects who took
28 both money and marijuana from the business. Business owners in the same complex as the "420
xotiaosma -3-
�aI II
JUN -27 -2005 08 40 213 687 6822 96Y P.e4
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
n
u
n
u
Primary Caregivers" feared that additional robberies would occur at the business Or they would be
the victim of a robbery or violent crime.
On April 5, 2005, members of the Anaheim Police Department met with the
Property Management Company, owners and representatives from the businesses at 421
Brookhutst Street to discuss their concerns. Safety was the main issue for the employees of
businesses near "420 Primary Caregivers." Many businesses believed they would become victims
of a robbery or shooting, based on the previous robbery. Patrons were also scared to use the public
testrooms in the complex because of the perception that many customers at "420 Primary
Caregivers" were criminals not patients. Patrons were also concerned about the use of marijuana
in the parking tot surrounding the complex, the strong marijuana odor in the ventilation system,
and continued interruption of neighboring businesses by "420 Primary Caregivers" customers.
Many businesses believed they were losing their own aliens based on the clientele of "420
Primary Caregivers" hanging around the courtyard and parking area of the complex.
Two businesses have ended their lease with the Property Management Company
and have moved. A law office who was a ten year occupant at the property, moved out of
Anaheim to another city citing, "marijuana smoke-has inundated [their office] .... and they can no
longer continue to provide a safe, professional location for... clients and employees." A bealth
oriented business has terminated tbeir lease after six years and moved out of the complex, citing
their business is repeatedly intern pted and mistaken multiple times each day for "tbe store that has
marijuana." The owner "fears boor his employee maybe shot if they are robbed by mistake and
the suspects do not believe they do not have marijuana." The property manager indicated at least
five other businesses have inquired about terminating choir lease for reasons related t0 '1420
Primary Caregivers."
Another community concern is the proximity of "420 Primary Caregivers" to
schools, community centers and park$. "420 Primary Caregivers" is operating inclose proximity
to Brookhurst Junior High School and a Day Care Center, the Broekhurst Community Center,
Brookburst Park, and Dad Miller Golf Course. Also nearby are Fairmont High School, Melbourne
Gauer and Juliette Low Elementary Schools.
ROA,305731.1
-4-
1 t
JUN -27 -2805 88:40 213 607 BB22 97% P.05
J"V'G I - C� 11 1c
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Arrests have been made supporting the belief tome "qualified patients" purchase
marijuana with a Doctor's recommendation, then supply it to their friends for illicit use. Criminal
investigation has also revealed the business is obtaining its marijuana from a variety of sources
including marijuana smuggled into the United States from South or Central America: Besides
selling a variety of qualities of dried marijuana, the business also sells marijuana plants and food
products made with concentrated cannabis, heavily laden with THC.
The Police Department has conservatively estimated the "420 Primary Caregivers"
business to be generating approximately $50,000.00 a week income.
8. The above facts are within my personal knowledge and I am competent to testify to
their truth if called as a witness.
I declare under of perjury under laws of State of California that the forgoing is true and
correct.
Executed this 27th day of June, 2005,
140A.3DS7I1.1
-5-
Sergeant Tim Miller
Supervisor, Street Narcotic unit
Anaheim Police Department
TOTAL P.06
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a
public hearing on a proposed urgency ordinance extending a moratorium on the issuance
of use permits, variances, building permits, business licenses or other applicable
entitlements for use for the establishment or operation of a medical marijuana
dispensary for a period of one (1) year.
NOTICE IS HEREBY FURTHER GIVEN that the that the proposed 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.
NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on April 25,
2006, at the hour of 7:00 p.m. in the City Council Chambers (Building A) at 3300 Newport
Boulevard, Newport Beach, Califomia, at which time and place any and all persons
interested may appear and be heard thereon. If you challenge this ordinance in court, you
may be limited to raising only those issues you or someone else raised at the public
hearing or in written correspondence delivered to the City, at, or prior to, the public
hearing. For information call (949) 644 -3131.
LaVonne M. Harkless, City Clerk
!!! City of Newport Beach
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a
public hearing on a proposed urgency ordinance extending a moratorium on the issuance
of use permits, variances, building permits, business licenses or other applicable
entitlements for use for the establishment or operation of a medical marijuana
dispensary for a period of one (1) year.
NOTICE IS HEREBY FURTHER GIVEN that the that the proposed 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.
NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on April 25,
2006, at the hour of 7:00 p.m. in the City Council Chambers (Building A) at 3300 Newport
Boulevard, Newport Beach, California, at which time and place any and all persons
interested may appear and be heard thereon. If you challenge this ordinance in court, you
may be limited to raising only those issues you or someone else raised at the public
hearing or in written correspondence delivered to the City, at, or prior to, the public
hearing. For information call (949) 644 -3131.
LaVonne M. Harkless, City Clerk
I City of Newport Beach
Posh 10('A�OA5- 4-l1ti(P
to - �- 14—No, I� vt�-' �- I�4-o6
�►�� ► Pao, -
�Vv�aiw 1� li) t -N-Flo
ice- I A-
Authorized to Publish Advertisements of all kinds including public notices by
Decree of the Superior Court of Orange County. California. Number A -6214,
September 29,1961. and A -24831 June 11, 1963.
PROOF OF PUBLICATION
STATE OF CALIFORNIA)
) ss.
COUNTY OF ORANGE )
I am a Citizen of the United States and a
resident of the County aforesaid; I am .
over the age of eighteen years, and not a
party to or interested in the below entitled
matter. I am a principal clerk of the
NEWPORT BEACH - COSTA MESA
DAILY PILOT, a newspaper of general
circulation, printed and published in the
City of Costa Mesa, County of Orange,
State of California, and that attached
Notice is a true and complete copy as
was printed and published on the
following dates:
APRIL..15,2006
I declare, under penalty of perjury, that
the foregoing is true and correct.
Executed on APRIL 15;2006
at Costa Mesa, California:
Title 14, Chapter 3,
a it has no potential
esultlng in physical .
to the environment..
, or ind'vec0y; and it
is changes in the
invent .pending the
than of the con -
led municipal code
OCE IS HEREBY
IER GIVEN that said
hearing will be held
.a 25, 2006, at the
N 700 pm: in the
3each, California, at
time and place any
II persons.inte estal
appear and be heard
o. If you challenge
dinance in court, you
)a limited to raising
hose issues you or
neeke raised at the
hearing or in wriden
pondence delivered to
ity, at or prior to,
mblic hearing. For
,ri
-O
RECEIVED
'06 APR 21 A9 b3
OFFICE OF THE CITY CLERK
CITY OF NFWPORT BEACH
`r�IgFKE OF PUBUC HUNG
=,,,',NOTICE IS HEREBY
GNEN. that the City Council
aof the City of Newport
will hold hold a public
"M1earing on a proposed
,urgency ordinance exthnd'ng
a moratorium on the
psdance of use permts,
93imances, building permits,
Amon ess licenses or other
iczb]a entitlements for
in�5se:?sfor the gtabilishment
for pperation of. a medical
ajariI' ana dispensary for a
�perioA of one (1) year.
ICE IS HEREBY
..
FURTHER GNEN that the
Meat the proposed ordinance
tb". not subject to the
'Ifforma Environmental
'Quill Act (CEQq) pureu-
ant,to.:Secaons
150fi0(c)(2)
(the
activity will not result
fin a <direct or reasonably
(foreseeable indirect physical
rehadge in the environment)
Title 14, Chapter 3,
a it has no potential
esultlng in physical .
to the environment..
, or ind'vec0y; and it
is changes in the
invent .pending the
than of the con -
led municipal code
OCE IS HEREBY
IER GIVEN that said
hearing will be held
.a 25, 2006, at the
N 700 pm: in the
3each, California, at
time and place any
II persons.inte estal
appear and be heard
o. If you challenge
dinance in court, you
)a limited to raising
hose issues you or
neeke raised at the
hearing or in wriden
pondence delivered to
ity, at or prior to,
mblic hearing. For
,ri