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Ordinance No. 910 - Prohibiting Medical Marijuana Dispensaries CitywideORDINANCE NO. 910 AN 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 such establishments within the City of Rosemead, thus creating a potential current and immediate threat to the public health, 1 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 marijuarfa 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. WHEREAS, in Gonzales v. Raich, the Supreme Court of the United States did not 2 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. 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 Ordinance or any part thereof, be rendered or declared invalid or unconstitutional by any final court action in a court of competent jurisdiction or by reason of any preemptive 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, 3 or words may be declared invalid or unconstitutional. SECTION 4: 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. SECTION 5. Prior Ordinance: Interim moratorium Ordinance No. 895 shall be of no further force and affect upon the effective date of this Ordinance No. 910 PASSED, APPROVED, AND ADOPTED this 12th day of April, 2011. ATTEST: S en Ly Mayor APPROVED AS TO FORM: Rachel Richman, City Attorn I, Gloria Molleda, City Clerk of the City of Rosemead, hereby certify that the foregoing Ordinance No. 910 was introduced at the regular meeting of the City Council of the City of Rosemead held on the 22nd day of March 2011, and was duly passed, approved and adopted by said Council at the regular meeting held on April 12, 2011 by the following vote: AYES: NOES: ABSENT: 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. M (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. 9 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 Ordinance No. 910 was regularly introduced and placed upon its first reading at a regularly meeting of the City Council on the 22nd of March, 2011. That after said Ordinance was duly adopted and passed at a regular meeting of the City Council on the 12th of April, 2011 by the following vote to wit: Yes: Alarcon, Armenta, Clark, Low, Ly, No: None Absent: None Abstain: None Gloria Molleda City Clerk 4 :0 1 TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER J i DATE: APRIL 12, 2011 SUBJECT: ORDINANCE 910 —SECOND READING: AMENDING TITLE 17 "ZONING" OF THE CITY'S MUNICIPAL CODE — PROHIBITING MARIJUANA DISPENSARIES CITYWIDE SUMMARY On March 22, 2011, the City Council introduced Ordinance No. 910, amending Title 17 "zoning" of the City's municipal code adding Chapter 17.106 prohibiting Medical Marijuana Dispensaries citywide. Ordinance No. 910 is now before Council at the required second reading for adoption. Staff Recommendation Staff requests that City Council ADOPT Ordinance No. 910 at its second reading. PUBLIC NOTICE PROCESS This item has been noticed through the regular agenda notification process. Prepared by: GLORIA MOLLEDA CITY CLERK Attachment A — Ordinance No. 910 ITEM NUMBER: