HomeMy WebLinkAbout2006-10 - Extending a Temporary Moratorium on the Establishment and Operation of Medical Marijuana DispensariesORDINANCE NO. 2006- 10
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.
V.
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.
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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
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 and extended by Ordinance 2005 -11 for one (1)
year prohibiting the establishment and operation of new medical
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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 Studv.
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
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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 25th day of
April, by the following vote, to -wit:
AYES, COUNCILMEMBERS Cwvcy, SePich, Roeanahy,
Ridgeway, Da,ig2e, Nicho(z, Mayon Webb
NOES,COUNCILM EMBERS
ABSENT, COUNCILMEMBERS ` --
ATT ST.
d7e � M � NEW/,
CITY CLERK u'
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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. 2006 -10 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 25th
day of April 2006, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Curry, Selich, Rosansky, Ridgeway, Daigle, Nichols, Mayor Webb
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 26th day of April 2006.
(Seal)
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U 1?2-
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. 2006 -10 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: April 29, 2006.
In witness whereof, I have hereunto subscribed my paTe this t` 66 day of
2006. ( " !P) • /� Q ��—
City Clerk
City of Newport Beach, California