HomeMy WebLinkAboutNS-2758 - Adding Article XIII to Chapter 18...
bk:8/26/07
ORDINANCE NO. NS-2758
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 MUNICIPAL
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. 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
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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 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
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that violates federal law. These cities include Orange, San Juan
Capistrano, Burbank, and Glendale.
I. Numerous law enforcement agencies have expressed concerns regarding
medical marijuana dispensaries and cooperatives in their areas. The
California Police Chiefs 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 development (SO) 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
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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.
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
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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, 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 Califomia 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, administering,
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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 anyone or more sections, subsections,
sentences, clauses, phrases, or portions be declared invalid or unconstitutional.
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ADOPTED this 5th day of November, 2007
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
AYES: Councilmembers: Alvarez. Benavides. Bustamante. Martinez.
Pulido. Sarmiento. Tinaiero (7)
NOES: Councilmembers: None (0)
ABSTAIN: Council members: None (0)
NOT PRESENT: Councilmembers: None (0)
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-2758 to be the original ordinance adopted by the City
Council of the City of Santa Ana on November 5. 2007, and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date: ~ 7, JoDl ~ 2i: L n /Jrl - J.
, 10v P.tr"" E. He.I, 'fY'Jifi'V>'''
Clerk of the Council
City of Santa Ana
Ordinance No. NS-2758
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