CC - Item 3C - Second Reading of Ordinance No. 935 Reinforcing The City Ban on Medical Marijuana DispensariesROSEMEAD CITY COUNCIL
STAFF REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: JEFF ALLRED, CITY MANAGER
DATE: FEBRUARY 11, 2014
SUBJECT: ORDINANCE 935— SECOND READINGS: MUNICIPAL CODE
AMENDMENT 13 -01, AN ORDINANCE REINFORCING THE CITY'S
CURRENT BAN ON MEDICAL MARIJUANA DISPENSARIES IN ALL
ZONING DISTRICTS
SUMMARY
On January 28, 2014, the City Council introduced Ordinance No. 935, amending title 17
"zoning" of the municipal code by adding chapter 17.40 for the purpose of reinforcing
and confirming the City's current ban on medical marijuana dispensaries in all zoning
districts. Ordinance No. 935 is now before Council at the required second reading for
adoption.
Staff Recommendation
Staff requests that City Council ADOPT Ordinance No. 935 at its second reading.
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Prepared by:
GLOR IA MOLLEDA
CITY CLERK
Attachment A — Ordinance No. 935
ITEM NUMBER: ✓L-
ORDINANCE NO. 935
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ROSEMEAD, CALIFORNIA, AMENDING TITLE 17
"ZONING" OF THE CITY'S MUNICIPAL CODE BY
ADDING CHAPTER 17.40 FOR THE PURPOSE OF
REINFORCING AND CONFIRMING THE CITY'S
CURRENT BAN ON MEDICAL MARIJUANA
DISPENSARIES IN ALL ZONING DISTRICTS
WHEREAS, in 1970, Congress enacted the Controlled Substance ACT ( "CSX)
which, among other things, make it illegal to import, manufacture, distribute, possess or
use marijuana in the United States, and
WHEREAS, in 1996, the voters of the State of California approved Proposition 215,
which was codified as Health and Safety Code Section 11362.5and following, and entitled
the Compassionate Use Act of 1996 (the "Act "), and
WHEREAS, the intent of Proposition 215 was to enable seriously ill Californians to
legally possess, use, and cultivate marijuana under limited, specified circumstances, and
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.
WHEREAS, these new regulations and rules became known as the Medical
Marijuana Program, which included a list of facilities that could qualify as "primary
caregivers" and dispense marijuana to qualified patients. The only facilities the Legislature
authorized to serve as "primary caregivers" are licensed clinics, health care facilities,
residential care facilities, home health facilities and hospices which provide medical care to
qualified patients (Cal. Health & Saf. Code § 11362.7 (d)(1)), and
WHEREAS, on June 5, 2005, the United States Court issued its decision in
Gonzales v. Raich (2005) 125 S. Ct. 2195, which held that Congress, under the
Commerce Clause of the United States Constitution, has the authority and power to
prohibit local cultivation and use of marijuana even if the cultivation or use complied with
California law, and
WHEREAS, in August 2011, the State legislature adopted AB 1300, which
amended California Health and Safety Code Section 11362.83 to read "Nothing in this
article shall prevent a city or other local governing body from adopting and enforcing any of
the following:
a) Adopting local ordinances that regulate the location, operation or establishment of a
medical marijuana cooperative or collective.
b) The civil and criminal enforcement of local described in subdivision (a).
c) Enacting other laws consistent with the article," and
WHEREAS, such local regulatory authority over medical marijuana dispensaries
has been affirmed by the California Supreme Court (See City of Riverside v. Inland Empire
Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4 th 729.), and
WHEREAS, citizens and law enforcement officers have reported an increase of
crimes, such as loitering, and an increase in traffic, odor, and noise in the vicinity of
dispensaries, and the sale of illegal drugs, including the resale of marijuana from
dispensaries, in the areas immediately surrounding such medical marijuana dispensaries,
and
WHEREAS, the City's Zoning Code (Title 17 of the Rosemead Municipal Code) is a
"permissive" use ordinance; only the land uses specifically listed in the Zoning Code are
allowed within the specific zoning district. Land uses that are not listed are not allowed;
and
WHEREAS, even though the "permissive use' nature of the City's Zoning Code
does permanently ban medical marijuana dispensaries citywide, adoption of this
Ordinance will reinforce the existing ban on medical marijuana dispensaries and avoid the
potential for confusion on the part of the public, and
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, and
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 such that a
permanent and obvious ban on that use is proper.
THE CITY COUNCIL OF THE CITY OF ROSEMEAD HEREBY ORDAINS AS
FOLLOWS:
SECTION 1: Compliance with CEQA The Planning Commission HEREBY
DETERMINES that the proposed amendment does not authorize any changes to the
environment and will have no impacts to properties in the City or their surrounding
environment, as medical marijuana dispensaries are currently not permitted in any zoning
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district of the City. The resolution provides zoning regulations which specifically confirm
and reinforce the City's current ban on medical marijuana dispensaries. 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 2: Findings. The City Council HEREBY FINDS AND DETERMINES that
facts do exist to justify approving Municipal Code Amendment 13 -01 in accordance with
Chapter 17.152, Section 17.152.040 of the Rosemead Municipal Code as follows:
A. The proposed amendment is consistent with the General Plan and any applicable
specific plan;
FINDING: The proposed Municipal Code Amendment clarifies that medical
marijuana dispensaries are prohibited in all zoning districts of the City. Medical marijuana
dispensary uses are not allowed by the current General Plan and Zoning Code. Adopting
Municipal Code Amendment 13 -01 maintains the current consistency with the General
Plan and between the General Plan and Zoning Code.
B. The proposed amendment will not be detrimental to the public interest, health, safety,
convenience, or welfare of the City; and
FINDING: Municipal Code Amendment 13 -01 will promote public health, safety,
and general welfare and serve the goals and purposes of Title 17 by clarifying and
confirming that medical marijuana dispensaries are prohibited in all zoning districts in the
City. The continued prohibition will ensure that none of the negative side effects of
medical marijuana dispensaries will negatively impact the general welfare of the City. The
amendment does not authorize any changes to the environment and will have no impacts
to properties in the City or their surrounding environment.
C. The proposed amendment is internally consistent with other applicable provisions of
the Zoning Code.
FINDING: The proposed Municipal Code Amendment clarifies that medical
marijuana dispensaries are prohibited in all zoning districts of the City. Medical marijuana
dispensary uses are not allowed by the current General Plan and Zoning Code. Adopting
Municipal Code Amendment 13 -01 maintains the current consistency with all other
provisions of the Zoning Code.
SECTION 3: Amendment to Title 17 . An amendment adding Chapter 17.40 to
Title 17 of the Rosemead Municipal Code entitled "Medical Marijuana Dispensaries;' as
shown in Exhibit "A" attached hereto is here by adopted.
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SECTION 4: 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,
or words may be declared invalid or unconstitutional.
SECTION 5: Effective Date. This Ordinance shall take effect thirty (30) days after
its adoption.
SECTION 6: Publicabon. The City Clerk shall certify to the adoption of this
Ordinance and shall publish a summary of this Ordinance and post a certified copy of the
full Ordinance in the office of the City Clerk at least five days prior to the adoption and
within 15 days after adoption of the Ordinance, the City Clerk shall publish a summary of
the Ordinance with the names of the Council Members voting for and against the
Ordinance. This Ordinance shall take effect thirty (30) days after the date of its adoption.
PASSED, APPROVED, AND ADOPTED this 11 day of February, 2014.
Polly Low
Mayor
ATTEST:
Gloria, Molleda, City Clerk
APPROVED AS TO FORM
Rachel H. Richman, City Attorney
Burke, Williams & Sorensen, LLP
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ORDINANCE 935
Chapter 17.40 MEDICAL MARIJUANA DISPENSARIES
Sections:
17.40.010 Definitions.
17.40.020 Medical Marijuana Dispensaries Prohibited.
17.40.030 Civil Injunction.
17.40.010 Definitions.
A. "Establish" or "Operate" a medical marijuana dispensary (as defined in this Section)
means and includes any of the following:
1. The opening or commencement of the operation of a medical marijuana
dispensary;
2. The conversion of an existing business, facility, use establishment, or location to
a medical marijuana dispensary;
3. The addition of a medical marijuana dispensary to any other existing business,
facility, use, establishment, or location.
B. "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.
C. "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.
D. "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
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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.
17.40.020 Medical Marijuana Dispensaries Prohibited.
A. Medical Marijuana Dispensaries are prohibited in all zones in the City and shall not
be established or operated anywhere in the City.
B. 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.
C. No use permit, site development permit, tentative map, parcel map, variance,
grading permit, building permit, building plans, zone change, business license,
certificate of occupancy, or other applicable approval will be accepted, approved, or
issued for the establishment or operation of a Medical Marijuana Dispensary.
D. 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.
17.40.030 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.
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