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HomeMy WebLinkAbout29 - Medical Marijuana DispensariesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 29 June 28, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Aaron C. Harp, Assistant City Attorney Ext. 3131, aharpa city.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 ten (10) months and fifteen (15) days. (Requires five Councilmembers' votes). 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. Ordinance No. 2005 -7 was adopted, in part, because the United Supreme Court was considering the case of Gonzales v. Raich, (2005) 2005 WL 1321358 U.S. On June 6, 2005, the United States Supreme Court decided the Gonzales case holding that federal laws that ban the use of marijuana for medical purposes are constitutional. Specifically, the Court held 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. Proposed Interim Urgency Ordinance Regarding Medical Marijuana Dispensaries June 28, 2005 Page 2 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. DISCUSSION: 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. Specifically, the Newport Beach Municipal Code does not address the regulation or location of medical marijuana dispensaries. 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. If federal law is modified to permit the use of marijuana for medical purposes and it is determined that California law allows for the establishment of commercial facilities designed to dispense marijuana, the need for proper regulation of these facilities is crucial so that these sites do not become magnets for non - medical marijuana sales, drug dealings and other crimes. Specifically, medical marijuana dispensaries have been established in several locations in California, and as a consequence, some local agencies have reported increases in illegal drug activity, illegal drug sales, robbery of persons leaving dispensaries, loitering around dispensaries, falsely obtaining "identification cards" to qualify for medical marijuana, and other increases in criminal activity. Recent examples include: men who kicked in the window of a medical marijuana dispensary in Oakland and tried to rob the dispensary; and, at another medical marijuana dispensary in Alameda County, thieves broke into the building and robbed the safe as well as persons present. The United States Department of Justice's (DOJ) California Medical Marijuana Information report has advised that large -scale drug traffickers have been posing as "care givers" to obtain and sell marijuana. 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, Proposed Interim Urgency Ordinance Regarding Medical Marijuana Dispensaries June 28, 2005 Page 3 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, 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 ten (10) months and fifteen (15) days. Prepared by: Aaron C. Harp, Assistant City Attorney Submitted by: I� Ro n lauson, City Attorney Attachment: Interim Urgency Ordinance Extending a Temporary Moratorium on the Establishment of Medical Marijuana Dispensaries -T, ORDINANCE NO. 2005- 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 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; 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. 2 "l 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 Government 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 a re: 3 (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 Ste. The Planning Department with the assistance of the City Attorney'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. 9 7 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. 5 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 , 2005, and adopted on the day of , 2005, by the following vote, to -wit: AYES, COUNCILMEMBE NOES.000NCILMEMB ABSENT, COUNCILMEMBE MAYOR ATTEST: CITY CLERK F: \users\cat \s ha red\ Ordinance \Med M ariDis pe nsa vies \Q5.12.Q5.doc n 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 establishing 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 in the City of Newport Beach for a period of ten (10) months and fifteen (15) days. 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 June 28, 2005, 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 project 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 IS 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 establishing 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 in the City of Newport Beach for a period of ten (10) months and fifteen (15) days. 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 June 28, 2005, 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 project 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 Authorized to Publish Advertisements of all kinds including public notices by Decree of the Superior Court of Orange County, California. Number A -6211. 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 parry 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: June 18, 2005 I declare, under penalty of perjury, that the foregoing is true and correct. Executed on June 20, 2005 at Costa Mesa, California. Signature 05 .t :4: 3 NOTKEOFPURKHUNG NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing on a proposed urgency ordi- nance establishing a moratorium on the issuance of use permits, variances, building permits, business li- censes or other appli- cable entitlements for use for the establish- ment or operation of a medical marijuana dis- pensary in the City of Newport Beach for a period of ten (10) months and fifteen (15) days. NOTICE 15 HEREBY FURTHER GIVEN that the that the proposed ordinance is not subject to the California Envi- ronmental 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 activ- ity is not a project as defined in Section 15378) of the CEQA Guidelines, California Cade of Regulations, Title 14. Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; and it pre- vents changes in the environment pending the completion of the con- templated municipal code review. NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on June 28, 2005, at the hour of 7:00 p.m. in the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport Beach. Cali- fornia, at which time and place any and all persons interested may appear and be heard thereon. If you challenge this project 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 Published Newport Beach /Costa Mesa Daily Pilot- June 18. 2005 Sa884