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Ordinance No. 911 - Urgency Ordinance Prohibiting Medical Marijuana Dispensaries CitywideORDINANCE NO. 911 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, AMENDING TITLE 17 "ZONING" OF THE CITY'S MUNICIPAL CODE ADDING CHAPTER 17.106 PROHIBITING MEDICAL MARIJUANA DISPENSARIES CITYWIDE. . WHEREAS, in 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code Section 11362.5 and following, and entitled the Compassionate Use Act of 1996 (the "Act "). WHEREAS, the intent of Proposition 215 was to enable seriously ill Californians to legally possess, use, and cultivate marijuana under limited, specified circumstances. WHEREAS, on January 1, 2004, Senate Bill ( "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. These new regulations and rules became known as the Medical Marijuana Program which, among other things, enhanced the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects. WHEREAS, neither Proposition 215 nor SB 420 authorizes medical marijuana dispensaries. WHEREAS, the Rosemead Municipal Code, including Title 17 (Zoning Code), does not address or regulate in any manner the existence or location of medical marijuana dispensaries. WHEREAS, many California cities and counties have adopted ordinances prohibiting or heavily regulating such dispensaries. WHEREAS, 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. WHEREAS, the United States Department of Justice's California Medical Marijuana Information Report advised that large -scale drug traffickers have been posing as "caregivers" to obtain and sell marijuana, thus increasing the likelihood that such traffickers in illegal drugs in the City, thereby endangering the public health, safety and welfare. WHEREAS, a number of cities in Los Angeles County have prohibited or imposed moratoria on medical marijuana dispensaries. This situation creates a substantially increased likelihood persons will seek to locate in such establishments within the City of Rosemead, thus creating a potential current and immediate threat to the public health, safety, or welfare. WHEREAS, in April 2009, the California Police Chiefs Association Task Force on Marijuana Dispensaries published a White Paper discussing the negative secondary effects of medical marijuana dispensaries on the health, safety and welfare of the communities where they have been established. The report analyzes several negative secondary effects including armed robberies, murders, burglaries, drug dealing, money laundering and organized crime. The report states, "Because they are repositories of valuable marijuana crops and large amounts of cash, several operators,of dispensaries have been attacked and murdered by armed robbers both at their storefronts and homes, and such places have been regularly burglarized. Drug dealing, sales to minors, loitering, heavy vehicle and foot traffic in retail areas, increased noise, and robberies of customers just outside dispensaries are also common ancillary byproducts of their operations. To repel store invasions, firearms are often kept on hand inside dispensaries, and firearms are used to hold up their proprietors." (California Police Chiefs Association's Task Force on Marijuana Dispensaries White Paper at page V.) , WHEREAS, the City Council hereby finds and determines that events in other cities and counties have demonstrated that substantial harmful secondary effects have arisen from the operation of medical marijuana dispensaries, including but not limited to increased crime rates that place additional burdens on law enforcement resources. WHEREAS, marijuana presently is categorized as a Schedule I controlled substance by the Federal Government. Schedule I drugs are classified as having a "high potential for abuse" and "no currently accepted medical use." WHEREAS, the Controlled Substance Act, a Federal law codified as 21 United States Code Section 841, makes it unlawful for any person to manufacture, distribute, or dispense marijuana, or to possess marijuana with the intent to manufacture, distribute, or dispense this drug. Marijuana used for medical purposes is not exempt from the Controlled Substances Act, and therefore, persons choosing to follow the provisions of California laws are subject to prosecution under Federal laws for possession and use of an unlawful controlled substance. WHEREAS, the Supreme Court of the United States ruled in United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, that notwithstanding California law, the federal Controlled Substances Act continues to prohibit marijuana use, distribution, and possession, and that no medical necessity exception exists to these prohibitions. WHEREAS, the Supreme Court of the United States ruled in Gonzales v. Raich (2005) 545 U.S. 1, that pursuant to the commerce clause, the federal government has the power to prohibit the local cultivation and use of marijuana, even though such cultivation and use complies with California law. 2 WHEREAS, in Gonzales v. Raich, the Supreme Court of the United States did not indicate that California law was invalid, but rather, merely indicated that the federal government could continue to enforce its medicinal marijuana laws. WHEREAS, this ordinance is enacted pursuant to the City's police power granted by the Constitution of the State of California, in order to promote the health, safety, and welfare of the residents of the City of Rosemead. WHEREAS, in enacting this ordinance, it is the Council's intention that nothing contained herein be construed to allow persons to engage in conduct that endangers others or causes a public nuisance, nor to allow any activity related to the cultivation, distribution, or consumption of marijuana that is illegal. WHEREAS, in light of these findings and facts, the City Council finds that it is contrary to the public health, safety, and welfare to permit the operation of medical marijuana dispensaries, as defined herein, within the City of Rosemead. WHEREAS, based upon its concerns regarding the adverse impacts on those communities where medical marijuana dispensaries have been established, and until the inconsistency between federal and state law is finally resolved, and until additional information regarding the impacts of medical marijuana dispensing is considered, it is the intent of the City Council of the City of Rosemead to prohibit medical marijuana dispensaries within the City. WHEREAS, the City Council further finds that there is a current and immediate threat to the public health, safety and welfare based on the above findings, and upon that basis has determined that it is necessary that this ordinance prohibiting medical marijuana dispensaries within the City be adopted as an urgency ordinance and take effect immediately upon its adoption pursuant to Government Code section 36937. THE CITY COUNCIL OF THE CITY OF ROSEMEAD HEREBY ORDAINS AS FOLLOWS: SECTION 1: Amendment to Title 17. An amendment adding Chapter 17.106 to Title 17 of the Rosemead Municipal Code entitled "Medical Marijuana Dispensaries," as shown in Exhibit "A" attached hereto is here by adopted. SECTION 2: Compliance With CEQA 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. SECTION 3: SeverabilitY The City Council hereby declares that, should any provision, section, subsection, paragraph, sentence, clause, phrase, or word of this 3 legislation, such decision or action shall not affect the validity of the remaining section or portions of the Ordinance or part thereof. The City Council hereby declares that it would have independently adopted the remaining provisions, sections, subsections, paragraphs, sentences, clauses, phrases, or words of this Ordinance irrespective of the fact that any one or more provisions, sections, subsections, paragraphs, sentences, clauses, phrases, or words may be declared invalid or unconstitutional. SECTION 4. Urgency Ordinance. This Ordinance is hereby declared an urgency measure pursuant to the terms of California Government Code section 36937 (b) and shall be effective immediately upon adoption by a four -fifths (4/5` vote of the City Council. SECTION 5. Prior Ordinance. Interim moratorium Ordinance No. 897 shall be of no further force and affect upon the effective date of this Ordinance No. 911. SECTION 6. Publication. The City Clerk shall certify to the passage and adoption of this Ordinance and to its approval by the Mayor and shall cause the same to be published according to law. PASSED, APPROVED, AND ADOPTED this 22nd day of March, 2011. MAYOR ATTEST: Gloria Molleda, City Clerk APPROVED AS TO FORM: achel Ric , hman, City Attorney STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS. CITY OF ROSEMEAD ) I, Gloria Molleda, City Clerk of the City of Rosemead, do hereby certify that the Ordinance No. 911 was duly and regularly approved and adopted by the Rosemead City Council on the 22nd of March, 2011, by the following vote to wit: Yes: No: Absent: Abstain: Gloria Molleda City'Clerk 5 EXHIBIT "A" "17.106 Medical Marijuana Dispensaries A. Definitions: (1) "Establish" or "Operate" a medical marijuana dispensary (as defined in this Section) means and includes any of the following: (a) The opening or commencement of the operation of a medical marijuana dispensary; (b) The conversion of an existing business, facility, use establishment, or location to a medical marijuana dispensary; (c) The addition of a medical marijuana dispensary to any other existing business, facility, use, establishment or location. (2) "Marijuana" means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes Marijuana infused in foodstuff. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant that are incapable of germination. (3) "Medical Marijuana" is Marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of Marijuana in the treatment of acquire immune deficiency syndrome ( "AIDS "), anorexia, arthritis, cancer, chronic pain, glaucoma, migraine, spasticity, or any other serious medical condition for which Marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code Section 11362.7. 9 (4) "Medical Marijuana Dispensary" means any business, facility, use, establishment or location, whether fixed or mobile, where Medical Marijuana is made available to, delivered to and /or distributed by or to, three or more of the following a "primary caregiver," "a qualified patient," or a person with an "identification card," as these terms are defined in California Health and Safety Code section 11362.5 and following. A "Medical Marijuana Dispensary" does not include the following uses, as long as the location of such uses are otherwise regulated by this code or applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care facility for persons with chronic life- threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health and Safety Code section 11362.5 and following. B. Medical Marijuana Dispensaries Prohibited. 1. Medical Marijuana Dispensaries are prohibited in all zones in the City and shall not be established or operated anywhere in the City. 2. No person may own, establish, open, operate, conduct, or manage a Medical Marijuana Dispensary in the City, or be the lessor of property where a Medical Marijuana Dispensary is located. No person may participate as an employee, contractor, agent, volunteer, or in any manner or capacity in any Medical Marijuana Dispensary in the City. 3. No use permit, site development permit, tentative map, parcel map, variance, grading permit, building permit, building plans, zone change, business license, 7 certificate of occupancy or other applicable approval will be accepted, approved or issued for the establishment or operation of a Medical Marijuana Dispensary. 4. Nothing contained in this Section shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any state or federal law. (c) Civil Injunction.. The violation of this Section shall be and is hereby declared to be a public nuisance and contrary to the public interest and shall, at the discretion of the City, create a cause of action for injunctive relief. E STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS. CITY OF ROSEMEAD ) I, Gloria Molleda, City Clerk of the City of Rosemead, California do hereby certify that the foregoing Urgency Ordinance No. 911 was duly and regularly approved and adopted by the Rosemead City Council on the 22nd of March 2011, by the following vote to wit: Yes: Alarcon, Armenta, Clark, Low, Ly No: None Absent: None Abstain: None Gloria Molleda City Clerk ROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER DATE: MARCH 22, 2011 SUBJECT: MUNICIPAL CODE AMENDMENT 11 -01, PUBLIC HEARING ON THE ADOPTION OF URGENCY ORDINANCE NO. 911 AND REGULAR ORDINANCE NO. 910 AMENDING TITLE 17 (ZONING) OF THE ROSEMEAD MUNICIPAL CODE ADDING CHAPTER 17.106 PROHIBITING MEDICAL MARIJUANA DISPENSARIES CITYWIDE SUMMARY Municipal Code Amendment 11 -01 consists of City of Rosemead initiated amendment to amend Title 17 "Zoning" of the Rosemead Municipal Code adding Chapter 17.106 prohibiting medical marijuana dispensaries citywide. On March 7, 2011, the Planning Commission was presented with Municipal Code Amendment 11 -01 and adopted Resolution No. 11 -04 recommending approval of Ordinance No. 910 to the City Council. The Planning Commission staff report, Resolution No. 11 -04, and draft meeting minutes are attached to this report as Attachments C, D, and E, respectively. Staff Recommendation It is recommended that the following actions are taken: 1. The City Council hold the noticed public hearing, receive public comment; . 2. The City Council move to adopt the proposed Urgency Ordinance No. 911 and file the Notice of Exemption for the project; and 3. The City Council move to Introduce for First Reading, by title only, Ordinance No. 910: 'Prohibiting Medical Marijuana Dispensaries Citywide" and to bring back Ordinance No. 910 to the meeting of April 12, 2011 for consideration of adoption. BACKGROUND At the City Council meeting of June 30, 2009, and after hearing and considering public testimony, the City Council adopted Ordinance No. 877 (Attachment "F ") establishing an interim urgency ordinance prohibiting Medical Marijuana Dispensaries for a period of forty-five days. As the Government Code allows the City to extend Ordinance 877 for a APPROVED FOR CITY COUNCIL AGENDA: City Council Meeting March 22, 2011 Page 2 of 4 period of 10 months and 15 days, the City Council did so at its meeting of August 11, 2009 by adopting Ordinance No. 879 (Attachment "G ") after hearing and considering further public testimony. Thus, Ordinance No. 879 was made valid until June 25, 2010. The Government code allowed the City Council one final extension to the interim urgency ordinance prohibiting Medical Marijuana Dispensaries for the period of one year. On May 11, 2010 the City Council adopted its last and final extension of the urgency ordinance prohibiting Medical Marijuana Dispensaries by adopting Ordinance No. 895 (Attachment "H "). This final extension is set to expire on May 10, 2011. Therefore, staff is coming forward with a permanent Medical Marijuana Dispensary ban ordinance for the City Council to adopt. ANALYSIS The Compassionate Use Act of 1996 (the "CUA"), adopted by the voters as Proposition 215, provided "qualified patients" and "primary caregivers" who possess and /or cultivate marijuana with immunity from prosecution under specific criminal statutes. In the ensuing years following its passage, the CUA generated significant confusion regarding a number of issues related to the use and distribution of medical marijuana. In 2003, the Legislature enacted a follow -up statute known as the Medical Marijuana Program Act (the "MMPA "). The MMPA, among other things, stated that qualified patients and primary caregivers who associate within the State of California in order to collectively or cooperatively cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under specific state statutes. This language regarding the collective or cooperative cultivation of medical marijuana has created further confusion and ongoing litigation on the extent to which a public agency may regulate or prohibit storefront medical marijuana dispensaries. Thus far, the appellate courts have not decided a case involving an expressed ban on medical marijuana dispensaries. However, in City of Corona v. Naulls (2008) and City of Claremont v. Kruse (2009), appellate courts upheld the application of municipal zoning regulations against medical marijuana dispensaries and affirmed permanent injunctions against the dispensary operators. In both cases, the cities had "permissive" zoning schemes, under which any land use that was not expressly permitted or conditionally permitted was deemed prohibited. Medical marijuana dispensaries were not listed specifically in either city's zoning code; therefore, the operation of a medical marijuana dispensary was a zoning violation, a nuisance per se, and subject to injunction. In Qualified Patients Association v. City of Anaheim ( 2010), a medical marijuana dispensary operator challenged Anaheim's expressly- stated ban on medical marijuana dispensaries, which also imposed criminal penalties on operators. The trial court dismissed the suit on multiple grounds, including the ground that federal law preempted the CUA and MMPA. The Court of Appeal reversed on the limited ground that federal law did not preempt the CUA and MMPA. The Court of Appeal did not decide the issue of whether the City's ordinance was permissible under the MMPA, but the opinion City Council Meeting March 22, 2011 Page 3 of 4 suggested that the legality of such an expressed ban was an open question. Dispensary operators have cited this language in numerous trial court cases to support their position that cities cannot ban dispensaries completely. For the most part, trial courts across the state continue to rule in favor of cities in these cases. Naulls and Kruse remain the only controlling appellate cases on the scope of permissible regulation of storefront medical marijuana dispensaries. Although these cases clearly favor a city's ability to ban dispensaries, the exact scope of municipal regulation of medical marijuana continues to be the subject of litigation and debate. Further, appellate court guidance will be needed to fully resolve this issue. Although appellate courts have not decided directly whether an expressly- stated "blanket ban" is consistent with the MMPA, there is precedent at the trial court level upholding such a regulation. Ordinance Prohibiting Medical Marijuana Dispensaries The proposed ordinance expressly prohibits medical marijuana dispensaries in all zones of the City. Further, medical marijuana dispensaries may not be established or operated which is defined to mean the conversion of an existing business or the addition of a medical marijuana dispensary to an existing use. The City will not issue any kind of permit, business license, or any other applicable approval for a medical marijuana dispensary. Any violation of this ordinance will be a public nuisance and the City may initiate an action for injunctive relief. The term "medical marijuana dispensary" is defined in such a way as to ensure that the ban does not prohibit a qualified patient's ability to possess, cultivate, or use medical marijuana in his or her own residence or to prohibit a primary caregiver from providing medical marijuana to his or her qualified patient. Staff is presenting for adoption both an Urgency and Regular Ordinance for Council's consideration. The Regular ordinance is being proposed along with the Urgency Ordinance to avoid any possible gap in the regulation of medical marijuana dispensaries which could occur if there was a challenge to the urgency findings in the Urgency Ordinance. ENVIRONMENTAL DETERMINATION Municipal Code Amendment 11 -01 is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3) 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. LEGAL REVIEW The attached Urgency Ordinance No. 911 and Ordinance No. 910 have been reviewed and approved by the City Attorney. City Council Meeting March 22, 2011 Page 4 of 4 PUBLIC NOTICE PROCESS This item has been noticed through the required public posting requirements of the regular agenda notification process for Municipal Code Amendments, pursuant to Section 17.116.020 of the Rosemead Municipal Code, which includes, publication in the San Gabriel Valley Tribune and posting of the notice at six (6) public locations in the C ity. 1 13, Lily Trinh Assistant Planner Attachment A: Urgency Ordinance No. 911' Attachment B: Ordinance No. 910 Attachment C: Planning Commission Staff Report dated March 7, 2011 Attachment D: Planning Commission Resolution No. 11 -04 Attachment E: Draft Planning Commission Minutes dated March 7, 2011 Attachment F: Ordinance No. 877 Attachment G: Ordinance No. 879 Attachment H: Ordinance No. 895 Submitted by: ment Director