HomeMy WebLinkAbout4.13 Medical Marijuana Dispensaries
CITY CLERK
File # D~[1i][O]-[b][O]
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: June 20, 2006
SUBJECT:
Ordinance Prohibiting the Operation of Medical Marijuana
Dispensaries
Report Prepared bv Elizaheth H. Silver, City Attorney
ATTACHMENTS:
Staff Report introducing Proposed Ordinance Prohibiting the
Operation of Medical Marijuana Dispensaries, includmg Ordinance
(June 6, 2006)
RECOMMENDATION: /7 A.l'YWaive the reading and ADOPT the ordinance to prohihit the
1'\ {/l{T" operation of medical marijuana dispensaries.
FINANCIAL STATEMENT:
No financial impact at this time.
DESCRIPTION:
At its June 6, 2006 meeting, the City Council conducted a public hearing, waived the first reading and
introdu"ed an Ordinance prohibiting the operation of medical marijuana dispensaries. The City Council
voted unanimously to approve the Ordinance, which adds Chapter 5.58 to the Dublin Munidpal Code to
prohibit the operation of medkal marijuana dispensaries within the City of Duhlin. A vl(llation of this
prohibition would "onstilute a misdemeanor, pursuant to Dublin Municipal Code Section 1.04.030.
RECOMMENDATION:
Staff recommends that the City Council waive the reading and ADOPT the Ordinance to prohibit the
operation of medical marijuana dispensaries (see attached Staff Report dated June 6, 2006).
-----------------------------------------------------~._--------_._------------------------------------~~----
COPIES TO:
Page I of 1
ITEM NO. Lf: '3
834752
{Z) Of ~~
~#~~
~~,
qJ;TfO'R~~
_h
c
t"'.
t~1
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: June 6, 2006
Proposed Ordinance Prohibiting the Operation of Medical
Marijuana Dispensaries
Report Prepared by Elizabeth H Silver, Cit,v Attorney
SUBJECT:
ATTACHMENTS:
RECOMMEND <\ nON:
/7~
FINANCIAL STATEMENT:
DESCRIPTION:
2.
Proposed Ordinance Adding Chapter 5.58 to the Dublin
Municipal Code to Prohibit the Operation of Medical
Marijuana Dispensaries
An Urgency Ordinance Making Findings and Adoptmg a
Moratorium on the Establislunent and Operation of Medical
Mari.Juana Dispensaries (Augu.~t 16, 2005)
An Urgency Ordinance Making Findings and Extending a
MoratllnUm on the Estllhlislunent and Operation of Medical
Mll.IiJuana Dispensaries (Septemher 20, 2005)
Staff Report entitled Review of Medical Marijuana
Dispensaries and attachmCllts (May 2, 2006)
3
4.
I
2.
3
4
5
Open puhlic hearing
Receive staff presentation
Receive public testimony and close public heanng
Deliberate
Waive the reading and introdu"e the ordinance to prohibit the
operation of medical marijuana dispensaries (Attachment 1).
No fmancial impact at this time.
On August 16, 2005, the City Council adopted a forty-five day moratorium on medical Inarijuana
dispensaries within the City of Dublin (Attachment 2). On September 20,2005, the City Council extended
the moratorium for a period of ten mnnlh8 and fifteen days to allow the City time to review options tor
addressing medical marijuana dispensaries (Attaclunent 31.
COPIES TO:
----...----...----..----------------...-------...-------..------...---------
4-(3
830731.1
Page I of4
Io-?D-ol,o
Ai -\Z\..c'\\ \y,c: I
....I-
, ,
On May 2, 2006, Staff presented the City Council with II report mcluding background info~~onleb'lll
analysis, surveys of surrounding communities and secondary impal.:ts of medica! marijuana dispensaries,
as well M Acveral options for addrcssing medical rnllrijuana dispensaries (Attachment 4). The City
Council unanimously voted to direct Staff to relum to the City Council with an ordinance pruhibiting
medical marijuana dispensaries within the City (Attachment I) for consideration by the council.
ANALYSIS:
~Q'ect or Proposed Ordinance
Thc proposed ordinance would add Chapter 5.58 to the Dublin Municipal Code to prohibit the operation
of medical ID9.njuana dispensaries within the City of Dublin (Attachment 1). A violation of this
prohibition would constitute a misdemeanor, pursuant to Dublin Munklpal Code Section I 04.030.
The ordinance defines a medical marijuana dispensary as any facility or location where medical marijullna
is available to two (2) or more of the following: a Qualified Patient, a Person with an 1dentificatioD Card,
or a Primary Caregiver. The ordinance adopts the definitions fbT these three terms as proVIded by the
Health & Safety Code Seel10n 11362.5 et seq.
It is important to note the several facilities that are exempted from the definitiun of a medical marijuana
dispensary The ordiualwe Identifies the following five facilities that would not be suhject to the
prohibitJOn, so long as such facilities are licensed pursuant to the Health & Safety Cude and comply with
the Dublin Municipal Code, the Health & Salety Code Section 11362.5 et seq., and other applicable law'
clinics, health care facilities, reSIdential carc facilities for persons with chronic life-threatemng illness,
residential care iacilili es for Ihc elderly, and hospices or a home health agencies. The putpose of the
exempl1tlll is to al10w 1egitimatc uscs of medical marijuana in state-licensed taciliues.
The ordinance will be added to Title 5 of the Dublin Municipal Code relating to Public Welfare helJll.usc:
the Publi" Welfare Chapter contemplates the prohibition of certain conduct. For example, Chapter 5 4R
rclating to Gaming prohibits "[a)ny game, llIambling or gaming not mentioned or included in Seution 330
or 330a of the Penal Cude," and makes it unlawful for any person to knowingly visit u premises where
gaming is occurring. Similarly, the operation of a medica! marijuana di~l'ensary constitutes condu<..'( that
may be prohibited in the Pubhc Welfare Chapter
At this time, Staff is not proposing an amendment to the 7,Olllng ordinance because prohibiting medical
marijuana dispensaries in the Municipal Code and Zoning Ordinance is unnecessarily duplicative.
However, an amendment to the Zoning Ordinance prohibiting mediual marijuana dispensilJles in all zones
will he included in the Community Development Department's Zoning Ordinao<;e update in the l1ext fiscal
year.
Conflict between State and Federal U:lW
3t1J7
In 1996, California votCI'll enacted thl:l Cumplls~lonate Use Act of 1996 (Proposition 215) to permit the
possession and cultivation of marijuana for medical purposes under limited and specified circumstances,
On January 1, 2004, Senate Bill 420 went into effect, whIch clarified the Compassionate Use A,,1 and
provided cities with the authority to adopt and enfor<:e Jaws consistent with Senate Bill 420
Conversely, the federal Controlled Substances Act makes it unlawful for any person to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute or dispense, mariJuana. (21
1l,S C Section 841,) The Controlled Substanccs Act does not exempt marijuana 10rmedical purposes.
Despite this conflict, the United States Supreme Court has not decided whether the Compassionate Use
Act is preempted by the federal Controlled Substances Act.
The uncertainty rcgarding the legality of the COlDpassi~lDate Use Act and Senate Bill 420 in light of the
federal Controlled Substances Act proVIdes a basis for the Council to considerpruhibiting medical
marijuana dispensaries so as to comply with federal law
Secondarv Effects or Medical MarUuana Disvensaries
Cities with medical marijuana dispensaries typically see an increase m patrols of the property, as well as
criminal activity surrounding thl:l property As descrihed in lhe May 2, 2006 staff report entitll:ld Review
of Medical Marijuana Dispensaries (Attachment 4), the surrounding communities of unincorpomted San
Leandro and Hayward have experienced reportcd criminal activity or cwls fi.lr SeTVl"e involving theft,
trespass, loitering, and disturbance calls, among others. Tn addition, the May 2, 2006 staff report included
attachments of staff reports from the City of Berkeley documenting the criminal activity involving
Berkeley medical marijuana dispensaries.
Alternate Availability of'Medical Mariiuana
Duhlm residents authorized to possess and cultivate medical marijuana pursuant to Hcalth & Safety Code
Section 11362.5 et scq. may obtain marijuana from dispensaries regn1ated by the County of AlllU1eda. The
County regu\atilln~ pennit a total of three medical marijuana dispensaries to locate in the unincorporated
area~ of the County, one in each ofthrce zones \..Teated by tbe Cuuntyregn1ations.
Currently, Alameda County has slated for operation the following three medical marijuana dispensaries:
We Arc Hemp located at 913 East Lewelling Boulevard, Hayward (Zonc 1); Carden of Eden located at
21227 Foothill Boulevard, Hayward (Zune 3); and a dispensary in Zone 2, which is yet to be detennined
by lottery Depending on the point of departure, these three dispensaries may be located within a 13 to 20
minute drive frum Dublin.
Possibility ofSJlit fTy Medir'al Mariioonu PrUDonents
Several California cities have been sued due to (Jrdinanccs prohibiting, or effectively prohibitinli\, medi"al
marijuana dIspensaries. In particular, the medical marijuana advocacy group, Americans for Safe Access,
has sned the cities of Concord, Fresno, Pasadena, and Susanvil1e. However, as described below, it
appears that no litigation commenced by Americans for Safe Access IS currently active.
In April 2000, Americans for Safc Access voluntarily dismissed its complaint agamst the City of Concord
in response to Concord's demurrer. Concord's demurrer argued that Amcricans for Safe Access had not
stated a claim for rclicffor several reasons, including the City's broad constitutional police P~lJa.qS
ordinances prohibiting conduct deemed harmful or offensive by the City Council. Similarlv, Am en cans
for Safe Access voluntarily dismissed its suit against Susanville recently
The litigation between Americans for Safe Access and Fresno is stayed while Fresno amends its
ordinance. Fresno's position is that the stale medical marijuana laws provide an affinnative defense to
individuals who possess and cultivatc marijuana for medical pw.poses, hut do not require cities to license
medical marijuana dispensaries. Finally, Americans for Safe Access filed suit against Pasadena in
October 2005, but has not yet served the City (,fPasadena with a copy of the summons and complaint.
RECOMMENDATION;
Stafl'recommends that the City Council. (I) open public hearing; (2) re"eive the staff presentation; (3)
receive public testimony and close public hearing; (4) deliberate; (5) waive thc reading and INTRODUCE
the ordinance io prohibit the operation of medical marijuana dispensaries (Attachment 1).
?1J -7
ORDINANCE NO. - 06
A ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
AN ORDINANCE OF THE CITY OF DUBLIN ADDING CHAPTER 5.58 TO THE
DUBLIN MUNICIPAL CODE TO PROHBIT THE OPERATION OF
MEDICAL MARIJUANA DISPENSARIES
SCl.--non 1
Findings.
A. In 1996, the voters of the State of California llpprnved Proposition 215, which enacted the
Compassionate Use Act of 1996, codified at Heldth & Satety Cndc Section 11362.5 The
Cmnpa~sionate U ~e Act permits possession and cultivation of mariJ uana for medical
purposes under limited iIl1d specified circumstances.
B In 2003, the State Legislature enacted Senate Bill 420 to clarify the scope of the
Compassionate Use Act and to allow cities to adopt und enthrce laws consistent with
Senate Bill 420.
C The federal Controlled Substances t\ct, 21 U.S.C Section 841, makes it unlawful for any
person to manufacture, distribute, or dhllense, or possess with intent to manufacture,
distribute or dispense, marijuana. The federal Controlled Substances Act contains no
exemption lhr marijuana used for medical purposes.
D. Tn 2001, the United States Supreme Court issued its decision in United States v Oakland
Cannabis Buyers' Cooperative, whJch held lhal there is no medical necessity exception to
the federal Controlled Substances Act.
E. In 2005, the United States Supreme Court issued its decision m Gonzalez v Ralc:h, which
held that Congress has the power under the Commerce Clause of the United States
Constitution to prohibit the manufacture, dislribution and possession of marijuana
pursuant to the Cnntn.llled Suhstances Ad, even as such prohibitions apply to marijuana
manufactured, distributed or possessed within the state of California.
F In light llfthese decisions, the City Council finds that it would be Cl.mtrary to the public
health, safety, and welfare (<'permit the operation of medical marijuanll dispensaries, as
defined herein, witb.in the City llfDuhlin because to permit such activities fillY suhj6l.1.
the City and/or its officials and employees (<J pTU&ecution under federal law and/or would
otherwise constitute illegal activity under federallllw
G. In addit!()n, &urrounding communities that permit medical marijuana facilities experience
(,Tlminal a(,iivlty or calls for serVlce Jnvolving theft, trespass, loitering, llnd dJsturbance
calls, among others.
-1-
_. -
-
-
Lo~7
H. Until the inconsistency between federal and state law relating to medical marijuana is
resolved, it is the intent of the City Council to prohibit medical manjuana dispensaries
wilhm the City of Duhlin.
1. This ordinance is enllCted pursuant to the City's police power found in Article Xl, Section
7 of the California Constitution in order 10 promole the health, safety, and welfare of
Dublin's residents.
NOW, THEREFORE, the City Council ot'the City of Dublin does hereby ordain as tbllows:
Section 2. Addition o.(Chapter 5.58. Chapter 5.58 is hereby added to the Dublin
Municipal Code to read as follows:
CHAPTER 5.58 MEDICAL MARIJUANA DISPENSARIES
5.58.111 0
Definitions. For the purposes of this Chapter, unless otherwise apparent from the
context, the fvllowing definitions shall apply:
A. "Medical Marijuana" is marijuana authvnzed in strict compliance with Health & Safety
Code Section 11362.5 et seq
B "Medical MaI1Juana Dispet1sary" means any facility or location, whether fixed or mobile,
where Medical Marijuana is made available to, dlstrihuted by, or distributed to two or
more of the following: a Qualified Patient, a Person with an Identification Card, or a
Primary CllICgivcr.
A Medical MarijUana Dispensary shall not include the following U$C$, so lvng as such
uses comp!> with this Cude, Health & Safety Code Section] 1362.5 et seq., and "ther
applicllbl., law'
1 A clinic licensed pur8Uant to Chapter 1 of Division 2 of the Health & Safety Code.
2. A health care fiwilit) hcensed pursuant to Chapter 2 of Divisi(l11 2 of the Health &
Safety Code.
3 A residential care facility for persons with chronic life-threatening illness licensed
pursuant to Chapter 3 01 of Division 2 ofthe Health & Safety Code.
4. A residential care facility [or the elderly licensed pursuant 10 Chapter ;1.2 ofDlVision
2 of the Health &. Safet) Code.
5 A hospice or a home health agency, licensed pursuant to Chapter 8 of Division 2 of
the Health & Safety Code.
2
7~1
C "Person with an Identification Card" shall have the meaning given that tenn by Health &
Safety Code Section. 1 1362,7.
D "Primary Caregiver" shall have the meening given that term by Health & Safety Code
Section 11362.7
E, "Qualified Patient" shall have the meaning given that tettn by Health & Safety Cude
Section 11362.7
5.5R,1I20
Operation of Medical Marijuana Dispensaries Prohibited. No person shall
operate or permit to be operated a Medical Marijuana Dispensary in or upon any
prlmlises in the city,
Sectiun 2. Effective Date. This Ordinance shall take effect and be enforced thirty
(30) day~ lbllowing it~ adoption.
Section 3 Posting The City Clerk of the City of Dublin shall cause this Ordinance
to be posted in at Icast three (3) public places in the Cit) of Duhlm in accordancc with Section
36933 of the Government Codc ofthc State ofCalifomia.
PASSED, APPROVED AND ADOPTED this _th day of June, 2006.
AYES
NOES.
ABSENT
ABSTAIN
Janet Lockhart, Mayor
A lTEST
FlIwn Hohnan, City Clerk
- 3-