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HomeMy WebLinkAbout2005-11 - Interim Ordinance: Extending a Temporary Moratorium on the Establishment and Operation of Medical Marijuana DispensariesORDINANCE NO. 2005 -11 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, the purpose of this interim urgency ordinance is to extend the moratorium on the establishment and operation of medical marijuana dispensaries for an additional ten (10) months and fifteen (15) days to permit staff to study (1) any response by the United States Congress to the decision in Gonzales v. Raich, (2005) 2005 WL 1321358 U.S., which upheld federal laws that ban the use of marijuana for medical purposes, (2) whether Califonnia law permits the establishment of commercial facilities designed to dispense marijuana; (3) what impact would be caused by these facilities if these facilities are permitted; and (4) 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 (415) 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 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. 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. F. On June 6, 2005, the United States Supreme Court decided the Gonzales case holding that the Commerce Clause grants Congress power to regulate purely local activities that are part of an economic class of activities that have substantial effect on interstate commerce. The United States Supreme Court also held that the application of the Controlled Substances Act provisions criminalizing manufacture, distribution, or possession of marijuana to intrastate growers and users of marijuana for medical purposes, as otherwise authorized by the California Compassionate Use Act, did not exceed. Congress' authority under the Commerce Clause to prohibit intrastate growth and use of marijuana. G. 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. H. A possible response by the United States Congress to the decision in Gonzales is that federal laws that ban medical marijuana use may be modified. Because California law was not overturned by the decision in Gonzales, any modification of the federal laws would have a direct impact on the City. I Given the possible response by the United States Congress to the decision in Gonzales, the City will need the opportunity to study: (1) any response by the Untied States Congress to the decision in Gonzales; (2) whether California law permits the establishment of commercial facilities designed to dispense marijuana; (3) what impact would be caused by these facilities if these facilities are permitted; and (4) what regulations are necessary to protect the public health, safety, and welfare if these facilities are permitted. J. 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 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 Govemment 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 ten (10) months and fifteen (15) 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 "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 are: (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 for ten (10) months and fifteen (15) days prohibiting the establishment and operation of new medical 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 Attomey's Office is directed to analyze: (1) any response by the Untied States Congress to the decision in Gonzales; (2) whether California law permits the establishment of commercial facilities designed to dispense marijuana; (3) what impact would be caused by these facilities if these facilities are permitted; and (4) the extent of regulatory controls necessary to protect the public health, safety, and welfare if these facilities are permitted and thought appropriate. 0 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 ten (10) months and fifteen (15) days from and after the date of this adoption on June 28, 2005; provided, however, that after notice of public hearing the City Councilmembers may by a four -fifths (4/5) of the voting City Councilmembers extend this interim urgency ordinance for a period of time up to one (1) year. 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 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. A 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 28th day of June , 2005, and adopted on the 28th day of June 2005, by the following vote, to -wit: AYES, COUNCILMEMBERS .Selich, Rosansky, Webb, Ridgeway, Daigie;:Aayor :'.Heffernan NOES, COUNCILMEMBERS ABSENT, COUNCILMEMBERS Nichols MAYOR -' ATTEST: 0 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2005 -11 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 28th day of June 2005, and that the same was so passed and adopted by the following vote, to wit: Ayes: Selich, Rosansky, Webb, Ridgeway, Daigle, Mayor Heffernan Noes: None Absent: Nichols Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of June 2005. (Seal) City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2005 -11 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit: July 2, 2005...� In witness whereof, I have hereunto subscribed my name this MA day of 2005. % d City Clerk City of Newport Beach, California