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HomeMy WebLinkAbout17 - Medical Marijuana DispensariesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 17 April 25, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Aaron C. Harp, Assistant City Attorney Ext. 3131, aharp(cilcity.newport- beach.ca.us SUBJECT: Report describing the measures taken to alleviate the conditions which led to the adoption of Interim Urgency Ordinance Nos. 2005 -7 and 2005 -11 regulating medical marijuana dispensaries RECOMMENDED ACTION: Receive and file the report. BACKGROUND: On May 24, 2005, after conducting a noticed public hearing, the City Council of the City of Newport Beach enacted Ordinance No. 2005 -7, an interim urgency ordinance making findings and establishing a temporary moratorium on the establishment and operation of medical marijuana dispensaries in the City. On June 28, 2005, the City Council adopted Ordinance No. 2005 -11 extending the moratorium ten (10) months and fifteen (15) days. At least ten days prior to the expiration of the interim urgency ordinance, the City Council must issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance. Accordingly, the City has prepared this report in satisfaction of the requirements of Section 65858. PUBLIC NOTICE: Public notice was provided in accordance with all applicable laws. Prep ed by: Submitted by: 0&1�-- C. '_ Aww C, ff'- Aaron C. Harp, Assistant City Attorney Robin Clauson, City Attorney Attachment: Report of the City Council of the City of Newport Beach on the Interim Urgency Ordinance Regulating Medical Marijuana Dispensaries F: \users \cat \shared \C CStaffReports \Med MariDispActio ns04- 25.doc REPORT OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ON THE INTERIM URGENCY ORDINANCE REGULATING MEDICAL MARIJUANA DISPENSARIES 1. Introduction On May 24, 2005, after conducting a noticed public hearing, the City Council of the City of Newport Beach enacted Ordinance No. 2005 -7, an interim urgency ordinance making findings and establishing a temporary moratorium on the establishment and operation of medical marijuana dispensaries in the City. On June 28, 2005, the City Council adopted Ordinance N0.2005 -11 extending the moratorium for ten (10) months and fifteen (15) days. Ten days prior to the expiration of the interim urgency ordinance, the City Council must issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance. Accordingly, the City has prepared this report in satisfaction of the requirements of Section 65858. II. Background to the Adoption of the Interim Urgency Ordinance 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 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. On January 1, 2004, SB 420 went into effect. SB 420 was enacted by the Legislature to clarify the scope of the Compassionate Use Act and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Compassionate Use Act. The Newport Beach Municipal Code does not address or regulate in any manner the existence or location of medical marijuana dispensaries. After receiving inquires from persons interested in establishing medical marijuana dispensaries, the City Council considered and enacted Ordinance No. 2005 -7 establishing a temporary moratorium on the establishment and operation of medical marijuana dispensaries in the City. Since the adoption of the moratorium, the City has continued to receive inquiries regarding the establishment of medical marijuana dispensaries in the City of Newport Beach. The City Council adopted Ordinance Nos. 2005 -7/11 because it found that: (1) because a significant number of cities, including cities in the County of Orange, have prohibited or heavily regulated medical marijuana dispensaries, there was a substantially increased likelihood that such establishments would seek to locate in the City of Newport Beach; (2) 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; and (3) the decision in Gonzales v. Raich, 125 S. Ct. 2195 (2005) created a conflict between State and Federal Law. - 1 - The City Council also found 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 facilities; 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 was thus necessary. III. Measures Taken Since the Adoption of the Interim Urgency Ordinance A. The United States Supreme Court's Decision in Gonzalez v. Raich. On June 6, 2005, the United States Supreme Court decided the Raich 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. In sum, the 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. B. Response to the Gonzalez v. Raich Decision. On June 6, 2005, California Attorney General Bill Lockyer issued an opinion that the decision in Raich 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. To date, the United States Congress has not modified Federal laws that ban medical marijuana. The conflict between State and Federal law has raised issues regarding whether: (1) Federal law has preempted California's medical marijuana statutes; and (2) it is legally appropriate to issue land use entitlements for a use that is unlawful under Federal law. Currently, issues related to the conflict between State and Federal law is being litigated. A resolution of these legal issues will help guide the City in making its determination of whether medical marijuana dispensaries should be a permitted use. C. Analysis of Proposition 215 and SB 420. The City Attorney's Office has been conducting analysis of Proposition 215 and SB 420. Currently, the City Attorney's Office is still conducting its analysis; however, the City Attorney's Office initial research has raised several issues regarding whether California law permits the establishment of commercial facilities designed to dispense marijuana. 2 Specifically, Proposition 215 and SB 420 do not expressly provide for commercial establishments designed to dispense marijuana, nor do they provide for other similar establishments set up for the dispensing of marijuana. At this time, legal challenges have been filed against cities that have enacted legislation banning medical marijuana dispensaries. A resolution of these cases should shed light on the interpretation of Proposition 215 and SB 420. D. Impact of Medical Marijuana Dispensaries. Many cities in California have allowed for the establishment of medical marijuana dispensaries, and as a result, have reported increases in criminal activity in the immediate and surrounding areas around such establishments. Specifically, the Declarations of Sergeant Robert McMahon of the Los Angeles County Sheriffs Department, Lieutenant Dale Amaral of the Alameda County Sheriff's Department, and Sergeant Tim Miller of the Anaheim Police Department, all of which are attached hereto, document the negative secondary effects of these dispensaries. Further, the City of Davis Police Department conducted a survey in 2004 documenting the secondary impacts of these facilities in seven (7) cities. A copy of the City of Davis Staff Report is attached hereto. E. Additional Measures. In addition to the foregoing, staff has conducted the following analysis: • Researched the City's General Plan, including the Land Use Element Goals and Policies; • Researched the City's Municipal Code relative to permitted uses; • Reviewed the Building Code for regulations which may affect health and safety; • Consulted with surrounding /adjoining cities to understand how they have or will be responding to requests for establishment and operation of medical marijuana dispensaries; • Attended a session entitled "Options For Local Land Use Regulations Related To Medical Marijuana" at the League of California Cities Conference held in San Francisco, California, on October 6 -7, 2005; and • Obtained medical marijuana dispensary ordinances from other agencies that may include .information useful to the City's ongoing study of this issue. Attachments: Declarations of Sergeant Robert McMahon of the Los Angeles County Sheriff's Department, Lieutenant Dale Amaral of the Alameda County Sheriff's Department, and Sergeant Tim Miller of the Anaheim Police Department City of Davis Staff Report -3- r 1 2 3 :I 6 8 10 11 12 13 14 1J 1G 17 1s 19 20 21 22 23 24 76 2Y 0 peclaration (ifSeraenntRo(tartMcMnhnn 1, Scrgeuut Robert McMahon, declare: I . 1 am a Sergeant in dre Los Angeles County Sheriffs depattmenl. I am assigned to the Nnr'cotics Bureau, West liollywoud Station and make this declaration in support of Los ! Angeles Comity's richly grief In Support of Preliminary injunction. 2. Since January of 2004, there have been about 6 to.8 known medical marijuana dispensaries operating in West Hollywood. Several of the dispensaries have had calls for service, cacti reporting variotrh criminal activity suspected or having occurred at die location. 3. Since January, 2004, the dispensary operating at 7906 Santa Monica Blvd., West Hollywood has had three cells for service. On Jamtaty 10, 2004 a call came in reporting a PC 245(A)(1) Assault with a deadly weapon and at PC 594 Vandalism, On June 3, 2004 a call came in reporting a Obstruction of sweet, sidewalk or other place open to public. 4. From June 21, 2004, the dispensary operating at 7213 Santa Monica Blvd., \lrest Hollywood, "LA Patients and Caregivers", bas had 3 calls for scrvicc. On February 19. 2005, there wag a 211 (robbery with a fircurm) repot -Led to have wrurrod The incident occurred at 6:15 a.m. Sevt n witnesscs reported that one of the 2 suspects pointed a handgun at one of the witnesses and ordcred several of the witnesses into the rear of the building where they were packaging medical Emarijuana for sale to patients. 5. The dispensary operating at 7828 Santa Monica Blvd., West Hollywood, doing business as "Mturnafive Herbal lieahh Services" has had to call the LA County Sheriff on two occasions. On May 15, 2005, there was a 211 cud a 245(A)(1), Assault with a deadly weapon rcpurlud Lo have occurred. The incident happenud ut 425 p.m. during nonunl business hours. Dour of the five suspects were armed with handguns and threatened several witrimsos. One of the victims reported being "pi.%ul whipped" when he told the suspeui he was unable to get him into the safe. MA.305583. 1 Zd WCE0:80 S00Z LZ •unf . r6EZ -85E WE:. 'ON M-4 nU38na 3t1117313Q331N3HS allM: W063 T 1 2 } 4 5 6 7 8 9 10 11 12 13 H 15 16 1 ti 19 20 21 22i 23 24 25 26 28 e (i. The dispensary located at 1209 La Brea Ave., West Hollywood, has had two rmluests for service. Further, on May 6, ^_005, LAI D served a su;u rch warrant at this location based on probable cause and presented bcfojL; the Honorable Judge S. Smith, Loa Angeles County Superior Cow-t. 7. The above fucU are within my personal knowledge and I am competent to testify to tbcir truth if called as a witness. I declare under of perjury under laws of State of California that the forgoing is true and correct. Executed this 27th day of June, 2005. ! Run ?(;55'). l Cd WCzo: eo SOOF LZ Sergenut Robert 0110hon Lux Angeles County Sheriff _2 S62:7-855= 0tz: 'ON xIJA nuE8n3 3fnI1.73130 -A3IN3HS QHM: WCNA 18/27/05 12.37 FAX 213 687 882 n II 2 3 4 5 6 7 8 9 t0 11 12 13 14 15 16 17 18 19 20 Z1 22 23 24 25 26 27 281 PROBATE DIVISION e0 0Z ;Declaration of Lieutenant Dale Amaral I, Lieutenant Dale Amaral, declare: 1. I am a Lieutenant in the Alameda County Sheriffs Department. I am in charge of the investigating units of the Eden Township Subdivisions bf the Alameda County Sheriffs Department. All of the medical marijuana dispensaries in the unincorporated areas of the County fall under my jurisdiction. I make this declaration in support of Los Angeles County's Reply Brief In Support of Preliminary Injunction. 2. Since January of 2005, there have been four reported incidents of criminal activity that have occurred in Alameda County at or near a medical marijuana dispensary. 3. On January 12, 2005, Alameda County Sheriff deputies responded to a report of 211 (strong arm robbery) that occurred at 159"' Avenue and East 14th Street, San Leandro, California. The incident involved a patron of a business operating as a medical marijuana dispensary and doing business as "The Health Center" located at 15998 East 14'" Street, San Leandro, California. After malting a purchase from The Health- Center, the patron was robbed by two suspects less than a quarter mile away from The Health Center. The incident occurred at around 5:40 p.m. 4. On February 6, 2005, Alameda County Sheriff deputies responded to a report of 211 (armed robbery) that occurred at 21222 Mission Boulevard, Hayward, California. The incident involved a business operating a medical marijuana dispensary and doing business as "Compassionate Collective of Alameda County" (CCAC). The incident occurred around 4:50 p.m. during normal business hours inside CCAC. Two suspects both armed with handguns entered CCAC and took marijuana and cash. The victims of the robbery included the security guard of CCAC. Several employees of CCAC were threatened by the two armed suspects. 5. On April 27, 2005, Alameda County Sheriff deputies responded to a report of 459 (burglary) that occurred at 15998 East 14"' Street, San Leandro, California. The incident involved a business operating a medical marijuana dispensary and doing business as "The Health Center ". The incident occurred at around 3:05 a.m. Someone had entered The Health Center and triggered the alarm. HOA.30648B.1 06/27/2005 RON 12:41 1Tl /Rl NO 71611 ®our 06/27/05 12:37 FAX 213 687 88 PROBATE DIVISION 0003 tl 1 2 3 4 5 6 7 9I 9 101 111 12 13 14 I5 16 17 18 19 20 21 22 23 24 25 26 27 28 6. On May 24, 2005, Alameda County Sheriff deputies responded to a report of 211 (robbery) that occurred at 16360 Foothill Boulevard, San Leandro, California. The incident involved a patron of a business operating a medical marijuana dispensary and doing business as "q Natural Source ". After making a purchase, the patron of A Natural Source was robbed by three suspects in the rear parking lot of A Natural Source, The above facts are within my personal knowledge and I am competent to testify to their truth if called as a witness. I declare under of perjury under laws of State of California that the forgoing is true and correct. Executed this 27th day of June, 2005. HOA306481.1 Ba�z '3° Y Lieutenant Dale Amaral Alameda County Sheriffs Department 2- 06/27/2005 MON 12:41 [TI /Rd NO 71 617 iri1003 A JUIy- c� -cVUa ii iy 1 Declaration of Sergeant Tim Miller 2 I, Sergeant Tim Miller, declare: 3 1. I am the Supervisor of the Anaheim Police Departments Street Narcotic Unit. I 4 make this declaration in support of Los Angeles County s Reply Brief In Support of Preliminary 5 Injunction. 6 2. As the Supervisor of our Department's Street Narcotic Unit, last month I prepared a 7 report in support of the City of Anaheim's proposed Medical Marijuana Emergency Ordinattce. 8 3. The contents of the report, which is described in more detail below, provides 9 background information regarding Proposition 215, codified under the California Health and 10 Safety Code as 1 1362.5 and Senate Bill 420, which clarifies the scope of Proposition 215; the 11 availability of marijuana; how other jurisdictions are dealing with the medical marijuana issues; 12 and the impact that medical marijuana is having on Anaheim. 13 PROPOSITION 215 14 4. Proposition 215, otherwise known as the Compassionate Use Act of 1996, was 15 approved by California voters to "ensure seriously ill Californians the right to obtain and use 16 marijuana for medical purposes where that medical use is deemed appropriate and has been 17 recommended by a physician who has determined that the person's health would benefit from the 18 use of marijuana in the treatment of [specified illnesses]." This proposition is codified under the 19 California Health and Safety Code ( "H & S ") as 11362.5, and allows personal possession and 20 cultivation of marijuana for medical purposes. This section does not provide the patient with 21 absolute immunity from arrest, but provides limited immunity allowing the patient to raise a 22 medical use defense. 23 As originally enacted, there is no specificity as to the strength, quality or quantity of 24 marijuana to be used for medical purposes, as long as it is related to the patient's medical need and 25 is recommended by a physician. 26 Senate Bill 420 was signed into effect January 1, 2004, to clarify the scope of 27 Proposition 215, and to allow cities and counties to adopt and enforce rules and regulations 28 regarding the Act. SB 420 also specifies, under 11362.77 H &S an acceptable amount - eight xnA30575I.1 "qV„-I I JUN -27 -2005 28:39 213 687 8822 96i P.22 JUIY'G l—GUYJJ 1a'aa 2 3 r. 5 6 7 8 9 10 21 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F— 1 L Ji I* ounces of dried marijuana plus 6 mature or 12 immature plants per qualified patient There is still no legislation dealing with strength or quality of marijuana. Since the origin of marijuana is also unregulated by the government, it can be obtained by patients through a variety of sources. It may be obtained through a health care provider, a cannabis club, cooperative, 11 or illicitly on the black market. Delta 9 Tetrahydroeannibinol or THC, is the active ingredient in marijuana. Its presence in marijuana varies greatly depending on a variety of factors, such as geographic origin, plant lineage, method of growth, etc. The percentage of THC present in marijuana commonly available, ranges from 3.5% to almost 40 %. The effects marijuana has on a user vary greatly depending upon the strength of the marijuana (amongst other factors). AVArLABILff—Y 5. Proposition 215 and SB 420 do not specifically deal with the issue of "where" patients .obtain marijuana for medical purposes. Simply put there are no government owned or operated marijuana cultivations, warehouses or retail outlets for medical marijuana. The law only designates a "qualified patient" or "primary caregiver" to grow, obtain or possess medical marijuana. If a "qualified patient" or "primary cam, giver" does not cultivate marijuana, it is obtained either illicitly by the patient or caregiver or someone else who supplies it to them. Patients may also purebase marijuana through mail order services from Northern California and other regions. Patients attempting to obtain marijuana legally may do so through over two dozen medical marijuana dispensaries, cannabis clubs, collectives and cooperatives in Southern California. Numerous dispensaries, etc. exist in Los Angeles County along with at least two in Orange County, including one currently operating in Anaheim. The number of businesses appears to be expanding at a rapid rate in both Los Angeles and Orange Counties. Many of the dispensaries and primary caregivers will deliver the marijuana to the patient at home or a care facility. I/ r/ soaro5nt.0 -2- -r JLN-27 -2005 08 39 213 6e7 8622 96/. P.03 101 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OngR JMSR CTIONS 6. Different jurisdictions have dealt with the medical marijuana issues in a variety of ways throughout the state. One jurisdiction in Los Angeles County researched the concept of having a City operated and regulated dispensary, however the project was discontinued prior to implementation. Recently, the cities of Lake Forest Ontario, Woodland (Northern California), Stockton, Simi Valley and Redlands have all established a 45 -day moratorium on businesses selling medical marijuana, allowing the cities additional time to further decide future action regulating or prohibiting medical marijuana dispensaries. The City of Huntington Beach adopted a temporary moratorium on medical marijuana facilities in February, and is now considering regulating the establishment and operation of such facilities. The Northern California Cities of Oakland, Hayward. Elk Grove, Citrus Heights, Roseville, Auburn, Plymouth and Dixon have adopted ordinances to regulate the establishment and operation of medical marijuana facilities- In July 2004, the Northern California City of Rocklin approved and adopted a zoning ordinance effectively prohibiting medical marijuana dispensaries in their jurisdiction. This ordinance has not been challenged to date. The City of Cost Mesa has drafted an ordinance prohibiting medical marijuana dispensaries in their jurisdiction, and the document is pending review for City Council approval. �. y I r The "420 Primary Caregivers" at 421 N. Brookhurst Street, Suite #130, Anaheim, obtained a business license from the City of Anaheim on May 19, 2004. The type of business was listed as a primary caregiver. By the fall of 2004, the Police Department began to receive complaints from neighboring businesses in the multi -unit complex regarding "420 Primary Caregivets." The complaints centered around the ongoing sales of marijuana to subjects who did not appear to be physically ill, the smell of marijuana inside the ventilation system in the building, and the repeated interruption to neighboring businesses. In January 2005, the 11420 Primary Caregivers" business and employees were robbed at gun point by three masked suspects who took both money and marijuana from the business. Business owners in the same complex as the "420 So&3om1.I .3. -fv`�4t JIXJ -27 -2005 08 40 213 6B? 8822 96i P.04 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 213 s s Primary Caregivers' feared that additional robberies would occur at the business or they would be the victim of a robbery or violent crime. On April 5, 2005, members of the Anaheim Police Departrnent met with the Property Management Company, owners and representatives from the businesses at 421 Brookburst Street to discuss their concerns. Safety was the main issue for the employees of businesses near "420 Primary Caregivers." Many businesses believed they would become victims of a robbery or shooting, based on the previous robbery. Patrons were also scared to use the public restrooms in the complex because of the perception that many customers at "420 Primary Caregivers" were criminals not patients. Patrons were also concerned about the use of marijuana in the parking lot surrounding the complex, the strong marijuana odor in the ventilation system, and continued interruption of neighboring businesses by "420 Primary Caregivers" customers. Many businesses believed they were losing their own clients based on the clientele of "420 Primary Caregivers" hanging around the courtyazd and parking area of the complex. Two businesses have ended their lease with the Property Management Company and have moved. A law office who was a ten year occupant at the property, moved out of Anaheim to another city citing, "marijuana smoke, has inundated [their office] .... and they can no longer continue to provide a safe, professional location for .._ clients and employees." A health oriented business has terminated their lease after six years and moved out of the complex, citing their business is repeatedly inz=pted and mistaken multiple times each.day for "the store that has marijuana." The owner "fears he or his employee maybe shot if they are robbed by mistake and the suspects do not believe they do not have marijuana." The property manager indicated at least five other businesses have inquired about terminating their lease for reasons related to "420 Primary Caregivers." Another community concern is the proximity of "420 Primary Caregivers" to schools, community centers and parks. "420 Primary Caregivers" is operating in close. proximity to Brookburst Junior High School and a Day Care Center, the Broakburst Community Center, Brookburst Park, and Dad Miller Golf Course. Also nearby are Fairmont High School, Melbourne Lauer and Juliette Low Elementary Schools. HOA.305731.1 -4- I JW -27 -2005 0840 213 Gel 13022 97% P.05 JLJIV -G l�GYJVJ yy tL 2 3 4 5 6 7 8 9 20 11 17. 13 14 15 16 17j 18 19 20 21 22 23 24 25 26 27 28 jArrests have been made supporting the belief some "qualified patients" purchase marijuana with a Doctor's recommendation, then supply it to their friends for illicit use. Criminal investigation has also revealed the business is obtaining its marijuana from a variety of sources including marijuana smuggled into the United States from South or Central America. Besides 7. selling a variety of qualities of dried marijuana, the business also sells marijuana plants and food products made with concentrated cannabis, heavily laden with THC. The Police Department has conservatively estimated the "420 Primary Caregivers" business to be generating approximately $50,000.00 a week income. 8. The above facts are within my personal knowledge and I am competent to testify to their truth if called as a witness. I declare under of perjury under laws of State of California that the forgoing is true and correct. Executed this 27th day of June, 2005. HDA.3OS731.1 -5- 1-7/� T c 77- SergeSUt Tim Miller Supervisor, Street Narcotic Unit Anaheim Police Department TOTRL P.06 Staff Report August 27, 2004 TO: City Council FROM: Steven Pierce, Captain SUBJECT: Report on Medical Marijuana Dispensaries Moratorium . Recommendation I. Hold Public Hearing. 2. Request direction to staff. 3. Adopt attached Urgency Ordinance extending the moratorium for an additional 10 months and 15 days (to 12:00 am, August 1, 2005). Fiscal Impact This report is provided for informational purposes and therefore does not result in any immediate fiscal impact. However, the issues presented in this report may lead to future Council action with potentially minor /major fiscal impact. Background and Analysis The voters of the State of California approved Proposition 215, codified as Health and Safety Code section 11362.5 et seq. and entitled "The Compassionate Use Act of 1996" (the "Compassionate Use Act "). The purpose of this Act was to allow patients suffering from a number of serious illnesses an opportunity to find relief through the use of doctor recommended marijuana. Additionally, in January 2004 the State enacted SB 420 to clarify the scope of the Compassionate Use Act and allows cities to adopt and enforce rules and regulations consistent with SB 420. This includes controlling sites where medical marijuana is dispensed to primary caregivers and patients. Other provisions of SB 420 include: • Recognizes the right of patients and caregivers to associate collectively or cooperatively to cultivate medical marijuana. • Requires the State Department of Health, working with county health departments, to set up a voluntary statewide identification program to protect qualified patients and their primary caregiver from arrest and prosecution of certain marijuana related crimes. • Disallows marijuana smoking in no smoking zones, within 1000 feet of a school or youth center except in private residences, on school buses, in a motor vehicle that is being operated, or while operating a boat.. • Protects patients and caregivers from arrest for transportation and other miscellaneous charges not covered in 215. Staff Report to City Council August 27, 2004 • Allows probationers, parolees, and prisoners to apply for permission to use medical marijuana; however, such permission may be refused at the discretion of the authorities. Makes it a crime to fraudulently provide misinformation to obtain a card, to steal or misuse the card of another, to counterfeit a card, or to breach the confidentiality of patient records in the card program. On August 2, 2004, City Council approved a moratorium on medical marijuana dispensaries in the City of Davis. The moratorium allowed staff and Council an opportunity to research and review the options and impacts of allowing a dispensary somewhere within the city limits. This report represents that research. There are three possible approaches to this issue: 1) do nothing, 2) ban them outright, or 3) allow dispensaries, but develop a variety of regulations controlling them. Option #1- Do nothing The existing City zoning regulations do not provide for the location and /or regulation of medical marijuana dispensaries and such uses might be permissible in any zone that allows retail uses, drug stores, or medical uses. Since there are no current regulations specifically dealing with medical marijuana dispensaries, if medical marijuana dispensaries were allowed to be established without appropriate regulation, such uses might be established in areas that would conflict with the requirements of the General Plan, be inconsistent with surrounding uses, or be detrimental to the public health, safety and welfare; and if such uses were allowed to proceed as allowed under the current zoning, such uses could conflict with, and defeat the purpose of, the proposal to study and adopt new regulations regarding medical marijuana dispensaries. Option #2 - Banning There is still an ongoing legal controversy between those states which permit medical use of marijuana and the federal government, as a result of the federal law which still prohibits the use and/or possession of marijuana for any purpose. It is the position of, for example, the Rocklin City Attorney that a city can prohibit the operation of such an enterprise for a variety of reasons, not the least of which is that it violates federal laws. Medical marijuana dispensaries violate federal law. For that reason, the City of Rocklin has moved to ban the facilities in the community. If you wish to deny a permit to such enterprises, it is would be easier to defend if ordinances are already in place and justification is articulated. Option #3 - Regulation The City of Davis could move to regulate dispensaries. For example, the City could, by establishing clear zoning requirements and a new ordinance, regulate location, hours of operation, on site activities (e.g., no alcohol sales), age of people allowed on site, and the registering of employees and background checks on those employees. Additionally, regulating the enterprise gives the City a process by which a facility's permit can be discontinued or modified if it becomes a public nuisance. It also gives the operator a process to appeal the denial or cancellation of a permit. Staff Report to City Council August 27, 2004 Other Jurisdictions' Experiences Police departments who have had dispensaries in their jurisdiction for some time were polled. The following are the comments received from those agencies: City of Arcata • There are two dispensaries in town that share a building. • The two dispensaries have an ongoing disagreement with each other that has resulted in numerous calls for police services to settle disputes. • The facilities do not have the correct electrical support and continuously blow out the electricity in the area. They have not complied with upgrading their electrical systems or responded to fire department concerns regarding proper exits and signage. • There have been numerous instances where people have purchased marijuana at the dispensary and then resold it at a nearby park. • A doctor has come to the dispensaries and, for a fee, will provide a medicinal marijuana recommendation for just about any complaint the patient makes. City of Roseville: • They currently have one dispensary in town. This dispensary was established prior to their current regulations and was grandfathered in. • Street level dealers are trying to sell to those going to the dispensary at a lower price. • People are smoking marijuana in public around the facility. • People are coming to the community from out of town and out of state to obtain marijuana (Nevada State and San Joaquin County, etc). • Marijuana DUI by people who have obtained marijuana from dispensary. • There has been at least one burglary attempt into the dispensary building. City of Oakland • They had more than 15 in Oakland, now limited to four by ordinance but control is not very strong. The fines are too small to control a lucrative business. • Large criminal element drawn to the dispensary location. • Marijuana dealers who have a doctor's recommendation are purchasing from the dispensary and then conducting illegal street sales to those who do not have the recommendation. • Street criminals in search of the drugs are robbing medical marijuana use patients of their marijuana as they leave the dispensary. • Thefts and robberies around the location are occurring to support the illegal and legal (by State law) drug commerce. • The Police Chief mentioned that a shoe repair business next door to a dispensary has been severely impacted because of the concentration of criminals associated with the dispensary. The shoe repair business owner is considering shutting down his business. • Most of the crime goes unreported because the users do not want to bring negative publicity to the dispensary. • The dispensaries have an underground culture associated with them. Staff Report to City Council August 27, 2004 • At least one of the dispensaries had a doctor on the premises giving recommendations on site for a fee. • One location was a combination coffee shop and dispensary and marijuana was sold in baked goods and for smoking. • Dispensary management has told police that they cannot keep the criminal element out. City of HaMard: • Hayward has three dispensaries, two legal under local ordinance and one illegal. • They have had robberies outside the dispensaries. • They have noticed more and more people hanging around the park next to one of the dispensaries and learned that they were users in between purchases. • They have problems with user recommendation cards — not uniform, anyone can get them. • One illegal dispensary sold coffee, marijuana and hashish — DA would prosecute the hashish sales and possession violations after arrests were made. • They have received complaints that other illegal drugs are being sold inside the dispensaries. • The dispensaries are purchasing marijuana from growers that they will not disclose. • The Police Chief believes the dispensaries do not report problems or illicit drug dealers around their establishments because they do not want the police around. • Hayward Police arrested a parolee attempting to sell three pounds of marijuana to one of the dispensaries. • Hayward has recently passed an ordinance that will make marijuana dispensaries illegal under zoning law in 2006. Lake County: • Lake County has one marijuana dispensary in Upper Lake. • The biggest problem is the doctor close by the dispensary who is known across the state for being liberal in his recommendations to use marijuana for a fee of $175. • Many "patients" come from hours away and even out of state, Oregon specifically, to get a marijuana recommendation from the doctor. • Upper Lake has been impacted by the type of people coming from the marijuana doctor and dispensary. Citizens report to the Sheriff that the people coming to Upper Lake for marijuana look like drug users ( "dopers "). • One quilt shop owner has told the Sheriff that she does not feel safe anymore because of the type of people drawn to the marijuana doctor and the dispensary, which are located close together in a very small town. • They also have a notorious marijuana grower who beat prosecution for cultivation by make a medical claim. Law enforcement has taken a hands -off approach even though he is blatantly violating the law. • The marijuana grower has recently claimed to be a church to avoid paying taxes. City of Fairfax: • Fairfax has one marijuana dispensary. Staff Report to City Council August 27, 2004 • Fairfax has had some problems with patients selling to non - patients. • They have had problems with purchasers from dispensary congregating at a baseball field to smoke their marijuana. • Fairfax police arrested one person who purchased marijuana at the dispensary and then took it to a nearby park where he tried to give it to a minor for sex. • Very small town and low crime rate. Berkeley • Has four facilities operating in the City currently (last 3 -4 years). • There have been several take over robberies of the dispensaries. • There have been arrests where legitimate purchasers have resold marijuana on the street to well individuals. • Obvious young people entering and purchasing marijuana from the dispensary. • Recommended that if we did not currently have the dispensaries, we should not allow them. • Police department has been given explicit instructions by their City Council not to take any kind of enforcement action against the dispensaries or people going in or out of the facility. • Facilities will accept any Health Department cards, even those obviously forged or faked. Below is a list of other California cities that do not have dispensaries and what they have or have not done on the issue. MEDICAL MARIJUANA City Approach Action Follow- uplDetails Have a mari)uana Town researched and found Chico dispensary that is trying no legal precedent for such to establish itself operation and plans to shut down establishment Chowchilla Have not been approached Have not been Will probably adopt an Clovis approached ordinance banning facilities similar to Rocklin's Have not had any formal As a result of the phone Dixon application, but did have calls, Town adopted an telephone inquiries emergency ordinance similar to Roseville Two groups (who were Town had no formal Chief plans to push a total ban El Cerrito kicked out by Oakland) guidelines in book, so they with Council; does realize he requested info about passed a 45 -day has to be open for required process of opening clinics I emergency ordinance I study to take place Staff Report to City Council August 27, 2004 In summary, the experiences of other cities that already have dispensaries are bad. Dispensaries have experienced robberies themselves; legitimate patients have been robbed of their marijuana as they leave the facility; people purchasing marijuana at the dispensaries have been caught reselling the marijuana nearby; street level dealers have begun selling marijuana and other drugs nearby in an effort to undersell the dispensary; some dispensaries have doctors present in their A Grow &Distribution After approach, PD City decided to use Gridley Center approached city department contacted cities Placerville's ordinance as a about possible ordinances model Jackson Was approached about Has an ordinance regulating clinics clubs Los Gatos Telephone inquiries Surveying cities to discuss issue with Council Actually had an emergency Plan to prevent Palo Alto Received 2 calls ordinance adopted a few establishments through zoning years ago ordinances Have not been Plan to implement an Paso Robles approached ordinance to prevent establishment of clinics Have not been No immediate plans to do Oroville approached anything on the issue. Will wait until inquiries are made. Received 4 inquiries and Application was denied due Town's ordinance has been in Placerville one formal application for to zoning and security place since June 22, 2004 a clinic issues. Redding Have not had any City is considering taking inquiries some preventative actions Rocklin Was approached about Enacted urgency ordinance clinics July of 2004 banning clubs Sacramento Several inquiries, but no City Attorney is reviewing the effort to actually open one law to advise the City Have not been Considering taking some San Luis Obispo approached action, but no idea what that will be Had one application in Denied application based West Sacramento last month on federal law violation, no ordinance enacted In response, city enacted an Was approached by emergency ordinance Woodland parties during the same setting zoning and CUP time as other cities regulations for any possible club In summary, the experiences of other cities that already have dispensaries are bad. Dispensaries have experienced robberies themselves; legitimate patients have been robbed of their marijuana as they leave the facility; people purchasing marijuana at the dispensaries have been caught reselling the marijuana nearby; street level dealers have begun selling marijuana and other drugs nearby in an effort to undersell the dispensary; some dispensaries have doctors present in their StaJffReport to City Council August 27, 2004 facility who will recommend marijuana as a course of treatment for just about any patient complaint; and many dispensaries do not take serious steps to ensure they are selling only to legitimate patients or their caregivers. When asked, many of the police departments that already have facilities in their cities said that if Davis did not already have a dispensary, we should take steps to prohibit one from opening in the city. Yolo District Attorney's Opinion The District Attorney for Yolo County feels dispensaries violate federal law. He is unwilling to enter into any discussion about regulating dispensaries. As they are illegal, discussions about regulation give the impression that the DA's office endorses violating federal law. Yolo County Health Department SB420 requires the State of California Department of Health to work with the counties to develop a statewide voluntary identification system for patients and their caregivers. According to the Yolo County Health Department, the State has not made contact with the counties to resolve this issue. Yolo County is waiting for the State. They have no plans on creating their own identification system as some counties have already done. Patients' Rights Groups Two patients' rights advocacy groups were contacted in developing this staff report: Americans for Safe Access and Compassionate Friends. Both groups applaud the City's consideration of this issue. They feel that marijuana provides a unique relief that other medications cannot. They are supportive of providing reasonable regulations on the business and the owners /employees. Representatives stated that patients who receive recommendations from physicians to use marijuana to relieve pain and suffering fall into two categories. There are those who will be unable or unwilling to purchase marijuana because there is no dispensary near them to purchase it legally. And, there are those who will take other measures to get marijuana despite the lack of a readily available dispensary. Those who will seek out marijuana without a legal dispensary nearby have several choices. First, the patient or their caregivers will drive long distances to a legal dispensary. This can be problematic since the patient may be suffering in a way that may prohibit driving long distances. Second, they may attempt to purchase marijuana from level dealers. With this decision comes the danger inherent with any street purchase, specifically, physical danger from the dealer or his/her cohorts and not knowing the quality of the product purchased. Finally, the patient/caregiver may attempt to grow the marijuana themselves. Again, the patient may not be well enough to grow their own. Also, there are inherent fire dangers with some of the grow lights. Furthermore, many renters run into disputes with their landlords when they grow medicinal marijuana in a rented house /apartment. For these reasons patients' rights advocates feel it is important to have a safe, credible and legal dispensary nearby for patients and their caregivers. When asked if a patients' rights group would be willing to open and operate a dispensary, both groups said they knew their group would not be willing to and they doubted any legitimate advocacy agencies would. As long as the federal government is willing to prosecute dispensary Staff Report to City Council August 27, 2004 owners, patients' rights groups would not run a dispensary. They feel that if they are in prison they would be unable to do their primary function, advocate for the sick. Moratorium Extension On August 2, 2004, City Council approved a moratorium on medical marijuana dispensaries in the City of Davis. The moratorium allowed staff and Council an opportunity to research and review the options and impacts of allowing a dispensary somewhere within the city limits. Staff has outlined various options for Council's consideration. The current moratorium is due to expire on September 17, 2004. That timeline does not leave Council sufficient time to take any action on this item. Therefore, staff is recommending an extension of the moratorium for an additional 10 months and 15 days (to 12:00 am, August 1, 2005), which is allowed under state law. The City Council may repeal the moratorium ordinance prior to its expiration. See the attachment for Ordinance language.