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HomeMy WebLinkAbout11A - ORD MED MARIJUANA DISPbk:8/26/07 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADDING ARTICLE XIII TO CHAPTER 18, AND ADDING SECTION 41-121 AND AMENDING SECTION 41-144 OF THE SANTA ANA MUNIC{PAL CODE TO PROHIBIT THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. For the last two years the City Council has had a moratorium in place banning medical marijuana dispensaries from opening in Santa Ana. The moratorium expires on October 17, 2007. Under state law, such moratoriums cannot generally be extended beyond two years. B. Under federal law, marijuana is considered a Schedule I drug which denotes "a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment." But California has two statutes dealing with medical marijuana. The Compassionate Use Act of 1996 (the "Compassionate Use Act")was enacted through a popular initiative, Proposition 215. The Medical Marijuana Program Act of 2004 was enacted by the State Legislature in the belief that Proposition 215 was being ignored by California cities and counties. Both of these state laws provide a defense to criminal prosecution for possession, cultivation, and transportation of marijuana in certain circumstances. C. In June 2005, the United States Supreme Court, relying on the Commerce Clause and Supremacy Clause of the United States Constitution, held that this California state law does not provide a defense to individuals prosecuted in federal court for cultivation, transportation, or possession of marijuana. After the June 2005 Supreme Court decision, many cities, including Santa Ana, enacted moratoriums to study the issue of medical marijuana dispensaries. Ordinance No. NS-XXX Page 1 of _ 11 A-1 Currently, many cities are facing the same predicament that Santa Ana is facing with their moratoriums about to expire. D. In Orange County, the cities of Tustin, Anaheim, Fullerton and Costa Mesa have all banned medical marijuana dispensaries from their cities. Anaheim recently enacted their ban and also decreed that any dispensaries already in existence would have to close. The City of Huntington Beach initially allowed medical marijuana dispensaries in general and limited industrial zones but is considering deleting this permission for medical marijuana dispensaries in its zoning code. On July 17, 2007, the Board of Supervisors for the County voted to approve a fee for the issuance of identification cards for patients and primary caregivers, which each county is mandated to issue under the state Medical Marijuana Program Act. The County has not addressed dispensaries from a land use perspective in the unincorporated areas. E. Elsewhere, Pasadena, Fresno, Susanville, and Concord, among others, are among at least 40 California cities that have adopted ordinances banning medical marijuana dispensaries; while another 100 cities have moratoria in place. (Source: League of California Cities.) Each of the aforementioned cities were sued by a non- profit group called the American Medical Marijuana Association (AMMA) that promotes the use medical marijuana. Susanville and Concord prevailed at the demurrer stage and the lawsuit against Pasadena was filed but never served. The lawsuit against Fresno has been stayed and during the stay, Fresno enacted an ordinance which appears to allow medical marijuana dispensaries and cooperatives in any zone district designated for medical offices but only if consistent with State and Federal law (therefore, it really bans them). F. The City of Los Angeles, which previously permitted approximately 100 medical marijuana dispensaries, in August 2006 adopted a one year moratorium on permitting any new dispensaries. The moratorium was based on findings that permitted dispensaries were not complying with existing regulations and were violating criminal laws. In supporting the moratorium, Los Angeles Police Chief Bratton testified before the city's Police Commission in January 2007: "The vast majority of people who use these premises are using them for recreational drug use." G. According to a report prepared by the Los Angeles Police Department, 24 cities and 7 counties had established ordinances authorizing them one way or another. Atascadero, Berkeley, Elk Ordinance No. NS-XXX Page 2 of 4 11 A-2 Grove, Hayward, Oakland, San Francisco, San Jose, Santa Cruz, Santa Rosa, Visalia, West Hollywood, and Whittier are among some of the cities which allow medical marijuana dispensaries in specified zones. This statistic may be somewhat misleading, however. For example, while Whittier permits dispensaries in its industrial zone, it has ordered the only existing dispensary in the city to close within one year. H. Currently, Long Beach, Corona, Mission Viejo, Newport Beach, Santa Clarita, and Simi Valley, among others, still have moratoriums in place. Several other cities have opted not to address the issue at the Council level, on the theory that (a) any land use not expressly permitted by the zoning code is banned, and/or (b) no land use can be legally established that violates federal law. These cities include Orange, San Juan Capistrano, Burbank, and Glendale. Numerous law enforcement agencies have expressed concerns regarding medical marijuana dispensaries and cooperatives in their areas. The California Police Chief's Association (CPCA) recently compiled a report containing data from several jurisdictions which illustrates some of law enforcement's complaints about these facilities: the facilities violate federal law, street dealers often sell at lower prices to entice patients away from dispensaries, non- residents travel to the city to purchase marijuana, neighboring businesses have experienced a loss of customers, there appears to be an increase in unreported crime to avoid negative publicity, there have been robberies outside of and at the dispensaries, there have been home invasion robberies of individuals who utilize or are employed by the dispensaries, and patients selling to non-patients. In addition, the media have investigated and reported about several physicians suspected of providing prescriptions of medical marijuana when they have not evaluated the patient's medical condition or the patient has no serious medical condition that would warrant a prescription. J. The secondary effects outlined in the CPCA report, the EI Cerrito Police Department memorandum and the Anaheim declarations are likely to occur in Santa Ana if medical marijuana dispensaries are allowed to legally operate. Unlike the cities and counties which have opted to not adopt ordinances addressing this issue, Santa Ana has a broad zoning use classification of "retail and service" uses (Santa Ana Municipal Code section 41-144) which would appear to allow medical marijuana dispensaries. Accordingly, once the moratorium expires and without a ban, medical marijuana dispensaries would be allowed to operate in all specific Ordinance No. NS-XXX 11 A-3 Page 3 of development (SD) districts which allow retail and service uses, as well as the city's C1, C2, C3A, C4, C5, and C-SM zones. K. The Council additionally relies on the facts and statements set forth in the Request for Council Action dated October 1, 2007, the Request for Planning Commission Action dated September 24, 2007and in the following expert reports that were submitted to the City Council, which all are incorporated by this reference as though fully set forth: (1) the California Police Chiefs Association Compilation Report on Medical Marijuana Dispensary Negative Secondary Effects; (2) the Riverside County District Attorney's Office White Paper on Medical Marijuana; (3) the City of EI Cerrito Police Department Memorandums; and (4) sworn declarations submitted by the Chief of Police of Anaheim and two other Anaheim police officers defending a challenge by an existing medical marijuana dispensary to Anaheim's ordinance banning medical marijuana dispensaries. L. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. M. This ban on dispensaries does not impede the purpose of Compassionate Use Act because it permits individual caregiver to patient relationships as intended by Proposition 215. N. Pursuant to the California Environmental Quality Act a statutory and categorical exemption has been approved for this project. Ordinance No. NS-XXX Page 4 of 4 11 A-4 Section 2. Article XIII is added to Chapter 18 of the Santa Ana Municipal Code to read as follows: Article XIII Medical Marijuana Dispensaries Sec. 18-610. Purpose and Findings. The City Council finds that federal laws prohibiting the possession, sale and distribution of marijuana, and alternatively their undesirable secondary effects, preclude the opening or operation of medical marijuana dispensaries sanctioned by the City, and in order to serve public health, safety, and welfare of the residents and businesses within the City, the declared purpose of this article is to prohibit medical marijuana dispensaries as defined in this article. Sec. 18-611. Medical Marijuana Dispensary Defined. (a) A medical marijuana dispensary is a facility or location, whether fixed or mobile, where medical marijuana is made available to, distributed by, or supplied to one or more of the following: (1) more than a single qualified patient, (2) more than a single person with an identification card, or (3) more than a single primary caregiver. The term "medical marijuana dispensary" includes a medical marijuana cooperative. (b) Unless otherwise regulated by this chapter or applicable law, a medical marijuana dispensary shall not include the following uses: (1) a clinic licensed pursuant to Chapter 1 of Division 2 of the California Health & Safety Code, (2) a health care facility licensed pursuant to Chapter 2 of Division 2 of the California Health & Safety Code, (3) a residential care facility for persons with chronic life-threatening illnesses licensed pursuant to Chapter 3.01 of Division 2 of the California Health & Safety Code, (4) a residential care facility for the elderly licensed pursuant to Chapter 3.2 of the California Health & Safety Code, (5) a residential hospice or home health agency licensed pursuant to Chapter 8 of Division 2 of the California Health & Safety Code, to the extent that such use strictly complies with applicable law, including but not limited to California Health & Safety Code section 11362.5. et seq. (c) A medical marijuana cooperative is two or more persons collectively or cooperatively cultivating, using, transporting, possessing, Ordinance No. NS-XXX Page 5 of 11 A-5 administering, delivering or making available medical marijuana, with or without compensation. (d) All terms used in this section, including but not limited to "medical marijuana," "qualified patient," "identification card," and "primary caregiver," shall be as defined in California Health & Safety Code section 11362.5. et seq. Sec. 18-612. Medical Marijuana Dispensary Prohibited. It shall be unlawful for any person or entity to own, manage, conduct, or operate any medical marijuana dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana dispensary in the City. Section 3. Section 41-121 of the Santa Ana Municipal Code is hereby added to define medical marijuana dispensaries as follows: Sec. 41-121. Medical Marijuana Dispensary. (a) A medical marijuana dispensary is a facility or location, whether fixed or mobile, where medical marijuana is made available to, distributed by, or supplied to one or more of the following: (1) more than a single qualified patient, (2) more than a single person with an identification card, or (3) more than a single primary caregiver. The term "medical marijuana dispensary" includes a medical marijuana cooperative. (b) Unless otherwise regulated by this chapter or applicable law, a medical marijuana dispensary shall not include the following uses: (1) a clinic licensed pursuant to Chapter 1 of Division 2 of the California Health & Safety Code, (2) a health care facility licensed pursuant to Chapter 2 of Division 2 of the California Health & Safety Code, (3) a residential care facility for persons with chronic life-threatening illnesses licensed pursuant to Chapter 3.01 of Division 2 of the California Health & Safety Code, (4) a residential care facility for the elderly licensed pursuant to Chapter 3.2 of the California Health & Safety Code, (5) a residential hospice or home health agency licensed pursuant to Chapter 8 of Division 2 of the California Health & Safety Code, to the extent that such use strictly complies with applicable law, including but not limited to California Health & Safety Code section 11362.5. et seq. Ordinance No. NS-XXX Page 6 of 4 11 A-6 (c) A medical marijuana cooperative is two or more persons collectively or cooperatively cultivating, using, transporting, possessing, administering, delivering or making available medical marijuana, with or without compensation. (d) A medical marijuana dispensary is not the same use as a pharmacy. (e) All terms used in this section, including but not limited to "medical marijuana," "qualified patient," "identification card," and "primary caregiver," shall be as defined in California Health & Safety Code section 11362.5. et seq. Section 4. Section 41-144 of the Santa Ana Municipal Code is hereby amended to prohibit medical marijuana dispensaries as a retail or service use in the City such that it reads as follows: Sec. 41-144. Retail and service uses. Retail and service uses include any use of property for the purpose of offering merchandise or services to the public for compensation, and include banks, savings and loan associations, and similar financial institutions, but do not include the following: (a) Sheet metal shops, body-fender works, automobile paint shops, repair garages, and any activity which includes the processing, treatment, manufacturing, assembling or compounding of any product, other than that which is clearly and traditionally incidental and essential to a particular retail activity. (b) A medical marijuana dispensary as defined in section 41-121 of this Code. (c) Any use which is more specifically identified as a permitted use or as a use which may be permitted subject to the issuance of a conditional use permit in one or more use districts pursuant to Article III of this chapter. Section 5. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Ordinance No. NS-XXX 11 A-7 Page 7 of _ ADOPTED this day of APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers 2007 Miguel A. Pulido Mayor CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXX Page 8 of 4 11 A-8