CC - Item 2A - Extension of Urgency Ordinance No. 877 to Prohibit Approval of Applications for Medical Marijuana DespensariesROSEMEAD CITY COUNCIL
STAFF REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: JEFF ALLRED, CITY MANAGER
DATE: AUGUST 11, 2009 41A
SUBJECT: EXTENSION OF URGENCY ORDINANCE NO. 877 TO PROHIBIT
APPROVAL OF APPLICATIONS FOR MEDICAL MARIJUANA
DESPENSARIES
SUMMARY
On June 30, 2009, pursuant to Government Code section 65858, the Rosemead City
Council enacted Urgency Ordinance No. 877, which imposed a moratorium on the
approval of applications for land use entitlements for medical marijuana dispensaries for
a period of 45 days. During this 45-day period, staff has begun to compile and study
the substantial health and safety issues, as well as the inconsistencies between State
law and Federal law, regarding the approval of and location of medical marijuana
dispensaries. The limited 45-day period has not provided a sufficient amount of time to
address the potential adverse impacts that such a use may present if left unregulated.
Therefore, such factors warrant the City Council's consideration of the adoption of
Urgency Interim Ordinance No. 879 to extend Urgency Interim Ordinance No. 877 for a
period of ten (10) months and fifteen (15) days.
Staff Recommendation
Staff recommends that the City Council introduce and conduct the first reading (by title
only) of a City Council Ordinance in Attachment A, and adopt, as an urgency measure
pursuant to California Government Code section 65858 (b) Ordinance No. 879 entitled
"An Urgency Interim Ordinance of the City Council of the City of Rosemead, California,
continuing the provisions of Ordinance No. 877 for a period of ten (10) months and
fifteen (15) days to continue the Moratorium on Medical Marijuana Dispensaries in the
City" and making findings in support thereof.
ANALYSIS
Over the past several months, the City has received inquiries from individuals interested
in establishing medical marijuana dispensaries in Rosemead. Currently, the City's
Municipal Code does not expressly permit or prohibit the establishment and operation of
such facilities. However, applicants could require a use determination from the City
pursuant to Section 17.12.030 of the Rosemead Municipal Code, thus allowing the
potential for the establishment or prohibition on a case by case basis.
ITEM NO.
APPROVED FOR CITY COUNCIL AGENDA:
City Council Meeting
August 11, 2009
Page 2 of 2
As indicated in the 10-Day Report" (Attachment B), which was prepared by the City
Attorney and made available for public review on July 30, 2009, staff has begun to
compile and study the substantial health and safety issues, as well as the
inconsistencies between State law and Federal law, regarding the approval of and
location of medical marijuana dispensaries. This includes but is not limited to a review
of the Qualified Patients Association et al. v. City of Anaheim lawsuit, which is currently
pending before the California Court of Appeals, Fourth District.
Staff, in conjunction with the City Attorney's office, has identified the Qualified Patients
case as key to determining the ultimate legality of commercial operation of medical
marijuana dispensaries. In addition to analyzing the impact of the Qualified Patients
decision on the City's future regulation of dispensaries, staff has identified immediate
health and safety concerns related to the siting of medical marijuana dispensaries,
including but not limited to burglaries, robberies, and sales of illegal drugs in the areas
surrounding dispensaries.
In order for the City to further study the potential impact that a medical marijuana
dispensary may have on the community, and due to the on-going Qualified Patients
case, staff is recommending that the City Council adopt Ordinance No. 879, extending
urgency Ordinance No. 877, for a period of ten (10) months and fifteen (15) days.
The extension of this moratorium will allow staff the time needed to continue to study
the impacts that such a facility would have on a community and determine an
appropriate listing of alternatives for the City Council to consider which would range
from tighter regulations to an outright ban on dispensaries within the City.
Comprehensive research into the issue will help to ensure that public health, safety, and
welfare is being protected at a high standard.
LEGAL REVIEW
This staff report has been reviewed and approved by the City Attorney.
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Prepared by: S
LPP.t SFss" 7'
B erSheri Bermejo.
Principal Planner Community Development Director
Attachment A: Ordinance No. 879
Attachment B: 10-Day Report
Attachment C: Ordinance No. 877
ORDINANCE NO. 879
AN URGENCY INTERIM ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ROSEMEAD, CALIFORNIA, CONTINUING THE PROVISIONS
OF ORDINANCE NO. 877 FOR A PERIOD OF TEN (10) MONTHS AND
FIFTEEN (15) DAYS TO CONTINUE THE MORATORIUM ON MEDICAL
MARIJUANA DISPENSARIES IN THE CITY
THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, FINDS AS
FOLLOWS:
SECTION 1. FINDINGS. Based on information contained in the record, the City
Council makes the following findings:
A. At a duly noticed public meeting on June 30, 2009, and after hearing and
considering public testimony, the City Council adopted Ordinance No. 877, an interim
urgency ordinance establishing a moratorium on medical marijuana dispensaries in the
City for a period of 45 days pending a resolution of the conflict in Federal and State law
on this issue.
B. Government Code Section 65858(a) authorizes the City Council to
continue the effect of Ordinance No. 877 for a period of 10 months and 15 days.
C. The findings made in Ordinance No. 877 are herby reaffirmed, readopted
and incorporated by reference as though they were fully restated herein.
D. There have been no substantive changes the conflict between Federal
and State law regarding medical marijuana dispensaries in the 45 days since the
adoption of Ordinance No. 877.
E. The immediate threat to and specific adverse impacts upon the public
health safety and welfare that would result from unregulated development of Medical
Marijuana Dispensaries justifies extension of the interim urgency moratorium
F. It remains necessary for the City to complete its study of the appropriate
type of local regulation required for medical marijuana dispensaries together with the
potential impact medical marijuana dispensaries may have on the public's health, safety
and welfare.
1. Currently the City's Municipal Code does not expressly permit or
prohibit the establishment and operation of medical marijuana dispensaries but
applicants could require a use determination from the City pursuant to Section
17.12.030 of the City's Municipal Code, thus allowing the potential for the
establishment or prohibition of such uses within the City on a case by case basis.
2. There exists a potential for inconsistent project review in that
absence of clear policy direction based upon a thorough review of the City's land
use goals and policies as well as information obtained from other cities and
Attachment A
LA #4829-50134020 vi
counties regarding the potentially positive and negative impacts that operation of
such facilities may have on the community.
3. The current status of the state and federal law is fraught with
inherent inconsistencies and pending judicial and administrative interpretations
and the status of existing litigation and proposed legislation indicates a high level
of community and statewide concerns regarding the establishment of medicinal
marijuana dispensaries, warrants further review and consideration by the City in
the establishment of appropriate local regulation for medical marijuana
dispensaries.
4. The United States Supreme Court in Tahoe-Sierra Preservation
Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302 has
upheld interim planning processes and determined that they are an essential tool
of successful development.
G. The City finds that an interim prohibition on medical marijuana
dispensaries and the issuance of any such applicable entitlements is necessary for an
additional period of 10 months and 15 days.
1. An additional period of 10 months and 15 days will permit City Staff
to complete its investigation of these matters and recommend a course of action
to the City Council.
3. Government Code § 65858 authorizes the City Council to extend,
as an urgency measure, an Interim Ordinance prohibiting any uses which may be
in conflict with its existing or proposed General Plan, Zoning Ordinance or land
use policies and which the City is considering or studying or intends to study
within a reasonable time.
SECTION 2. ENVIRONMENTAL REVIEW. The City Council finds that:
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; rather it prevents
changes in the environment pending the completion of the contemplated Municipal
Code review.
SECTION 3. IMPOSITION OF MORATORIUM. The City Council orders as follows:
A. In accordance with the authority granted the City of Rosemead under
Government Code § 65858(a), and pursuant to the findings stated herein, Ordinance
No. 877 is hereby extended and the moratorium on medical marijuana dispensaries, as
LA 44829-5013-4020 V1
set forth fully in Ordinance No. 877, shall remain in effect for an additional period of 10
months and 15 days.
SECTION 4. EFFECTIVE DATE AND DURATION.
Pursuant to Government Code § 65858(a) this Ordinance shall take effect
immediately but shall be of no further force and effect 10 months and 15 days from its
date of adoption.
SECTION 5. PUBLICATION.
The Mayor shall sign and the City Clerk shall certify to the passage and adoption
of this Ordinance and shall cause the same to be published and posted pursuant to the
provisions of law in that regard and this Ordinance shall take effect immediately and
shall be in effect for a period of 10 months and 15 days.
INTRODUCED at the regular meeting of Rosemead City Council on 2009.
PASSED, APPROVED AND ADOPTED this day of 2009.
Margaret Clark, Mayor
ATTEST:
Gloria Molleda, City Clerk
APPROVED AS TO FORM:
Joseph M. Montes, City Attorney
LA #4829-50134020 v1
10 DAY REPORT ON THE CITY OF ROSEMEAD'S
MORATORIUM ON THE APPROVAL OF APPLICATIONS
FOR MEDICAL MARIJUANA DISPENSARIES
BACKGROUND
On June 30, 2009, pursuant to Government Code section 65858, the Rosemead City
Council enacted Urgency Ordinance No. 877, which imposed a moratorium on the
approval of applications for land use entitlements for medical marijuana dispensaries for
a period of 45 days (the "Initial Ordinance"). This report is submitted in compliance with
subsection (d) of Government Code section 65858, which requires the issuance of "a
written report describing the measures taken to alleviate the conditions which led to the
adoption of the ordinance."
UPDATE ON THE MEASURES TAKEN TO ALLEVIATE THE CONDITIONS THAT
LED TO THE ADOPTION OF THE INITIAL ORDINANCE
1. In the limited time allotted under the 45 day Initial Ordinance, City staff has
begun to compile and study the substantial health and safety issues, as well as the
inconsistencies between State law and Federal law, regarding the approval of and
location of medical marijuana dispensaries. This includes but is not limited to a review
of the Qualified Patients Association et al. v. City of Anaheim lawsuit currently pending
before the California Court of Appeals, Fourth District.
2. Staff, in conjunction with the City Attorney's office, has identified the Qualified
Patients case as key to determining the ultimate legality of commercial operation of
medical marijuana dispensaries. In addition to analyzing the impact of the Qualified
Patients decision on the City's future regulation of dispensaries, City staff has identified
immediate health and safety concerns related to the siting of medical marijuana
dispensaries, including but not limited to burglaries, robberies, and sales of illegal drugs
in the areas surrounding dispensaries. Staff has determined that these concerns
represent an immediate threat to the safety and health of the neighborhood which would
be located close to medical marijuana dispensaries.
RECOMMENDATION
Due to the on-going Qualified Patients case and to the health and safety concerns
noted in this report, staff recommends adoption of the Extension Ordinance. If adopted
by the City Council, the Extension Ordinance would extend the moratorium on the
approval of applications for land use entitlements for medical marijuana dispensaries for
a period of 10 months 15 days.
Attachment B
ORDINANCE NO. 877
AN URGENCY INTERIM ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ROSEMEAD, CALIFORNIA, ESTABLISHING A MORATORIUM
ON MEDICAL MARIJUANA DISPENSARIES IN THE CITY
THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, FINDS AS
FOLLOWS:
SECTION 1. FINDINGS. Based on information contained in the record, the City
Council makes the following findings:
A. California has adopted laws regarding the use, possession and cultivation
of medical marijuana. '
1, In 1996, the voters of the State of California approved Proposition
215 (the Compassionate Use Act of 1996 - the "Act"), which was codified as
Health and Safety Code Section 11362.5. The intent of the Act was to enable
seriously ill Californians to legally possess, use, and cultivate marijuana under
very limited circumstances.
2. In 2003, Senate Bill No. 420 ("SB 420") was enacted 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, but also permitted patients and
caregivers to form collectives or cooperatives for the cultivation of their medical
marijuana. The Act and SB 420, together with applicable rules and regulations,
are often known as the Medical Marijuana Program.
3. The establishment and operation of medical marijuana dispensaries
are not authorized under the Act or SB 420.
B. Many California cities have responded to the Act and SB 420 by regulating
or prohibiting medical marijuana dispensaries.
C. Many California cities and counties have adopted ordinances prohibiting
or heavily regulating such dispensaries.
1. 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.
2. 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.
Attachment C
- - - - . - -
3. A number of cities in Los Angeles County have prohibited or
imposed moratoria on medical marijuana dispensaries. Rosemead's Municipal
Code does not currently expressly permit or prohibit 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.
D. The law regarding medical marijuana dispensaries is in a state of conflict
and flux.
1. The United States Supreme Court 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.
2. The United States Supreme Court 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.
3. It is not clear what position the federal government will take in
enforcing or changing existing laws regarding the use, possession and cultivation
of marijuana for medical purposes.
(a) In the wake of the Gonzales decision, the. federal
government continued to enforce its anti-drug laws against medical
marijuana dispensary operators. However, on February 25, 2009, U.S.
Attorney General Eric Holder suggested a shift in the federal government's
position on the prosecution of medical marijuana dispensaries by stating
that the actions of federal law enforcement agencies would be consistent
with the President's campaign statement that he would allow states to
regulate medical marijuana without interference from the federal
government.
(b) Subsequently, on March 18, 2009, U.S. Department of Justice,
Attorney General Holder stated the current administration's stance on the
prosecution of medical marijuana distributors operating under enabling
state laws as "The policy is to go after those people who violate both
federal and state law." Furthermore, Holder stated that law enforcement
officers will target those who attempt to "use medical marijuana laws as a
shield for other illegal activity."
(c) Members of U.S. Congress have stated that they anticipate
introduction of bills which would, among other things, have the effect of
legalizing the medicinal use of marijuana in California, or impose
moratoriums on all federal government enforcement against users of
marijuana for medical purposes.
(d) Both the U.S. Congress and the Obama Administration have
not provided any guidance as to what types of facilities dispensing medical
marijuana, if any, are consistent under both California'and federal laws.
4. On February 23, 2009, California Assembly Member Ammiano
introduced Assembly Bill 390, which could remove marijuana and its derivatives
from statutes defining and regulating controlled substances. This bill would also
remove all civil and criminal penalties for adults 21 years of age or older who
cultivate, possess, transport, sell or use marijuana.
5. Despite clear direction from the United States Supreme Court that
medical marijuana dispensaries violate federal law, such facilities continue to
operate throughout California and the power of cities and counties to regulate
them is the subject of ongoing litigation. For example, the City of Anaheim's
prohibition on medical marijuana dispensaries was challenged and is currently
being considered by the Court of Appeal.
6. Oral arguments in the Anaheim case - properly titled Qualified
Patients Association et al. v. City of Anaheim - are expected to be heard in
August before the California Court of Appeals, Fourth Appellate District, Division
Three. The resulting decision may uphold or reject the rights to cities to prohibit
the ownership, management, and operation of medical marijuana dispensaries
within their boundaries. This matter was not before the Court of Appeal when the
City last adopted a moratorium on the subject of medical marijuana dispensaries.
7. The potential for change in Federal enforcement of the Controlled
Substances Act and the Court of Appeal decision on the subject of medical
marijuana dispensaries create a new level of legal uncertainty that requires City
Staff to again study the potential impacts of medical marijuana dispensaries in
the City.
E. It is necessary for the City to study the appropriate type of local regulation
required for medical marijuana dispensaries together with the potential impact medical
marijuana dispensaries may have on the public's health, safety and welfare.
1. Currently the City's Municipal Code does not expressly permit or
prohibit the establishment and operation of medical marijuana dispensaries but
applicants could require a use determination from the City pursuant to Section
17.12.030 of the City's Municipal Code, thus allowing the potential for the
establishment or prohibition of such uses within the City on a case by case basis.
2. There exists a potential for inconsistent project review in that
absence of clear policy direction based upon a thorough review of the City's land
use goals and policies as well as information obtained from other cities and
counties regarding the potentially positive and negative impacts that operation of
such facilities may have on the community.
3. The current status of the state and federal law is fraught with
inherent inconsistencies and pending judicial and administrative interpretations
and the status of existing litigation and proposed legislation indicates a high level
of community and statewide concerns regarding the establishment of medicinal
marijuana dispensaries, warrants further review and consideration by the City in
the establishment of appropriate local regulation for medical marijuana
dispensaries.
4. The United States Supreme Court in Tahoe-Sierra Preservation
Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302 has
upheld interim planning processes and determined that they are an essential tool
of successful development.
F. The City finds that an interim prohibition on such uses and the issuance of
any such applicable entitlements is necessary for a period of 45 days.
1. Based on the foregoing, permitting the ownership, establishment or
operation of medical marijuana dispensaries prior to resolution of the currently
pending lawsuits challenging local regulation of medical marijuana dispensaries,
would result in the current and immediate threat to the public health, safety, and
welfare.
2. An initial period of 45 days will permit City Staff to undertake an
initial investigation of these mattes and recommend a course of action to the City
Council.
3. Government Code § 65858 authorizes the City Council to adopt, as
an urgency measure, an Interim Ordinance prohibiting any uses which may be in
conflict with its existing or proposed General Plan, Zoning Ordinance or land use
policies and which the City is considering or studying or intends to study within a
reasonable time.
SECTION 2. ENVIRONMENTAL REVIEW. The City Council finds that:
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; rather it prevents
changes in the environment pending the completion of the contemplated Municipal
Code review.
SECTION 3. IMPOSITION OF MORATORIUM. The City Council orders as follows:
A. In accordance with the authority granted the City of Rosemead under
Government Code § 65858(a), and pursuant to the findings stated herein, for a period of
45 days from the date of adoption of this Ordinance:
1. No medical marijuana dispensary may be established or operated
in any zone of the City.
2. No use permit, site development permit, tentative map, parcel map,
variance, grading permit, building permit, building plans, zone change, business
license or other applicable approval will be accepted, approved or issued for the
establishment or operation of a medical marijuana dispensary.
B. As used in this Ordinance, the following definitions apply:
1. "Establish" or "operate" a medical marijuana dispensary (as defined
in this Ordinance) 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 dispensary" means any business, facility, use,
establishment or location, whether fixed or mobile, where medical marijuana is
made available to and/or distributed by or to one 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 § 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 § 11362.5
and following.
SECTION 4. EFFECTIVE DATE AND DURATION.
Pursuant to Government Code § 65858(a) this Ordinance shall take effect
immediately but shall be of no further force and effect forty-five (45) days from its date
of adoption, unless the City Council, after notice and public hearing as provided under
Government Code § 65858(a) and adoption of the findings required by Government
Code § 65858(c), subsequently extends this Ordinance.
SECTION 5. REPORT ON INTERIM MORATORIUM.
. Pursuant to Government Code § 65858(d), 10 days prior to the expiration or any
extension of this Interim Ordinance, the City Council will issue a written report
describing the measures taken to alleviate the conditions which led to the adoption of
this Interim Ordinance.
SECTION 6. PUBLICATION.
The Mayor shall sign and the City Clerk shall certify to the passage and adoption
of this Ordinance and shall cause the same to be published and posted pursuant to the
provisions of law in that regard and this Ordinance shall take effect immediately and
shall be in effect for a period of 45 days.
INTRODUCED at the special meeting of Rosemead City Council on June 30, 2009.
PASSED, APPROVED AND ADOPTED this day of At , 2009. ,I U Margar Clark, Mayor
ATTEST: A&C~o
Gloria Molleda, City Clerk'
Ij
APPROVED AS TO FORM:
h
Josep on ¢ ty Attorney
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. 877 was regularly introduced and
placed upon its first reading at a special meeting of the City Council on the30th of June,
2009. That after said Ordinance was duly adopted and passed by the following vote to
wit:
Yes:
Armenta, Clark, Low, Ly, Taylor
No:
None
Absent:
None
Abstain:
None
~J..l~...l (T I\ 11 .AIYPnYI
Gloria Molled
City Clerk