HomeMy WebLinkAboutItem 6.2 MedicalMarijuanaDispen
CITY CLERK
File # D!5J'JJQ]-~OJ
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: August 16,2005
SUBJECT:
Public Hearing· Urgency Ordinance Placing a
Temporary Moratorium on the Establislnnent and
Opcration of Medical Marijuana Dispensaries_
(Report prepared by Gary Thuman, Police Chief and
Elizabeth H. Silver, City Attorney)
ATTACHMENTS;
1.
Draft Urgcncy Ordinance
RECOMMENDATION;
Ñ
'-.
I.
2_
3.
Open Public Hearing
Reccivc Staff presentation;
Receive Public Testimony and Close Public
Hearing;
Delibcrate
Waive Reading and Adopt the Urgency
Ordinancc (4/5 vote required)
4_
5.
FINANCIAL STATEMENT:
No Jimmeial impact allhi, lime.
DESCRIPTION:
Background
In 1996, Calilomia votcrs enacted the Compassionate Use Act of 1996 ("the Act"). The Act permits
possession and cultivation of marijuana for limited medical treatment purposes, subject to certain
procedural requirements ofthc Act. On January 1, 2004, SB 420 went into effcct, which clarifies, and
possibly expands, thc scope of the Act. Since 5B 420 has taken effect, numerous cities in Northern
California have received applications tor the issuance of a business license to open a medical marijuana
dispensary. While the term "medical marijuana dispensary" is not defined by either the Act or SB 420,
advocatcs of medical marijuana have apparcntly decided that mcdical marijuana dispcnsaries are the
preferred method to providc marijuana. To ensure thc legality of the dispensary, the person wishing to
operate the dispensary typically seeks to obtain a business license from the City in the same way that any
other business would obtain a business license before opening.
On June 6, 2005, thc United States Supreme Court decided Gonzales v. Raich. In Raich, the Court held
that the provisions of/he federal Controlled Substances Act apply to the personal medical use of
marijuana. The decision firmly established the power offcderal agencies to prosecute users and
distributors ofmedical marijuana for violation of the ControlJed Substances Act. However, shortly after
the Raich decision can1e down, the California Attorney General issued an opinion stating that thc decision
did not result in the preemption of the Compassionate Use Act by federal law. As a result, California law
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COPIES TO:
ITEM NO.~
G:\CC-MTGS\2005-Qtr3\Au~\08-16-05\as-medical marij.n..l~
enforcement agencies will likely not change their current practices for the non-arrest and non-prosecution
of individuals who are within the legal scope or California's Compassionate Use Act. The Attorney
General's opinion, however, docs not prevent federal law enforccment officials from making arrests in
Califomia under the federal Controlled Substances Act. Despite the Supreme Court's decision, the issue
of whether, and to what extent, California cities may regulate medical marijuana dispcnsaries remains
unclear.
The City's Municipal Code does not currently define or regulate medical marijuana dispensaries through
either a license permitting process or zoning regulations. Thus, a person interested in opening such a
dispensary might argue that the use is similar to a pharmacy, medical office or limited retail use and locate
in a number of zoning districts. Because thcre first must be a determination whether the use is located in
the correct zoning district, the Director of Community Development would have to determine how to
categorize marijuana dispensaries_ Section 8.04.060.C of the Zoning Ordinance provides a procedure tor
him to do so. Once the Director has determined that the use could be located in the proposed location, a
business license could be issued.
The zoning categorization process may not adequately protect the public from the adverse impacts of
medical marijuana dispensaries. The existence and operation of medical marijuana dispensaries is a
relatively new concept and the [hIl scope of the potential impacts of dispensaries is not known. However,
other California communities where dispensaries have opened have reported the occurrence of such
negative secondary impacts as:
· Incrcascd crime in the vicinity of the dispensaries;
· Robbery of patients as they go in or leave the dispensaries;
· burglary attempts on dispensaries;
· Increased DUIs in the vicinity of the dispensaries;
· Increased street dealing in the vicinity or the dispensaries;
· Individuals smoking marijuana in the vicinity of the dispensaries; and
· Reports of impacts on neighboring businesses due to the criminal element being drawn to
dispensaries.
In light of the potential impacts noted abovc and the uncertainty as to the City's ability to regulate medical
marijuana dispensaries, many of the cities and counties across the state facing this issue (thirty four, by
last count) have opted to defer taking action by imposing a moratorium on marijuana dispensaries.
Several neighboring jurisdictions, including the City of Pleasant on, the City of Fremont and the City of
Livermore, have adopted Or are considering adopting similar moratorium ordinances, which may increase
the likelihood of a medical marijuana dispensary locating in Dublin. Other neighboring jurisdictions have
taken different approaches. Alameda County recently passed an ordinance that regulates the use of
medical marijuana. The Cities of San Ramon and Danville have not taken action at this time.
In order to ensure that allowing medical marijuana dispensaries does not harm the public, the Council may
direct staffto conduct further study of the potential impacts and the possible amendment of the City's
Zoning Code. If the Council finds that allowing dispensaries to open prior to the study's completion
could defeat tl1e purpose of the study and any subsequent rules and regulations, it may also impose a
moratorium on the establislnnent and operation of such businesses.
Urgency Ordinance Inmosinl! a Moratorium
Califomia Government Code section 65858 provides statutory authority for interim ordinances prohibiting
uses that may conflict with a contemplatcd general plan, specific plan or zoning proposal that the city is
2'b3
studying or plans to study. An interim ordinancencommonly eal1cd a moratorium--imposes temporary
land use controls based on a documented, current and immediate threat to public health, safety, and
welfare. An interim ordinance protects and promotes the planning process by prohibiting the introduction
of potentially nonconforming land uses that could defeat or impair a later adopted general plan or zoning
ordinance.
Procedural1y, such an ordinance may be adopted initially without a public hearing following a 4/5 vote of
the legislative body. The initial moratorium lasts for 45 days. After notice and a public hearing, the
ordinance may be extended, again with a 4/5 vote, for an additional 10 months and 15 days. Thereafter,
the ordinance may be extended for one additional year, again with a 4/5 vote. No more than two
extensions may be adopted. The City Council cannot adopt or extend any interim ordinance unless the
ordinance contains a finding that there is a current and immediate threat to the public health, safety or
welfare, and that the approval of applicable land use entitlements would result in that threat to public
health, safety or welfare. Ten days prior to the expiration of sllch an ordinance or any extension, a written
report is to be issued describing the measures taken to alleviate the condition that led to the adoption of
the ordinance.
Should the City Council establish a moratorium through the adoption of this urgency ordinance, Staff
requcsts direction as to whether Staff should return at the City Council meeting of Septen1ber 6 to cxtend
the ordinance lor an additional 10 months and 15 days.
Recommendation;
(I) Open Public Hearing; (2) receive Staff presentation; (3) receive public testimony and elose public
hearing; (4) Deliberate; and (5) Waive reading and adopt the Urgency Ordinance (Attachmcnt 1) imposing
a 45-day moratoriuln on medical marijuana dispensaries to protect against a current and immediate threat
to the public health, safety and welfare as set forth in this staff report.
=3U[Y
I~~
ORDINANCE NO. xx-OS
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OJ<' DUBLIN
AN URGENCY ORDINANCE MAKING FINDINGS AND ADOPTING A
MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF MEDICAL
MARIJUANA DISPENSARIES, TO BECOME EFFECTIVE IMMEDIATELY
RECITALS
1. In 1996 the voters of the state of California approved Proposition 215 (codi lied as Health
and Safety Codc Section 11362.5 et. §Z1. and entitled "The Compassionate Use Act of 1996").
2. The intent of Proposition 215 was to enablc persons who are in need of medical marijuana
for specified medical purposcs to obtain and use it under limited, specified circumstances.
3. On J311Uary 1,2004, SB 420 went into effect. SB 420 was enacted by the State Legislature
(0 clarify (he scope of the Compassionate Use Act of 1996 and to allow cities and other goveming bodies
to adopt 311d enforce rules 311d regulations consistent with SB 420.
4. The Dublin Municipal Code and Zoning Code are silent with regard to the rcgulation and
location of medical mariju311a dispensaries.
5. The City of Dublin has received inquiries regarding the permitting and establishment of
mcdical marijuana dispensaries within the City.
6. In order to address both community and statewide concems regarding the cstablislnnent of
medical marijuana dispensaries, it is necessary for the City of Dublin to study the potential impact such
facilities may have on the public health, safety and welfare.
7. Other Califomia cities which have permitted the establishment of medical marijuana
dispensaries have recognized an increase in crime, such as burglary, robbery and sale of illegal drugs in
the areas immcdiately surrounding such medical marijuana dispensaries.
8. The City Council finds that it is necessary to study tl1e possible adoption of mnendments to
the City's Zoning Code in order to adopt legislation which, to the extent possible, conforms to the
Compassionate Use Act and SB 420 as well as the recent decision of the United States Supreme Court in
Gonzales v. Raich clarifying that the provisions of the federal Controlled Substances Act apply to the
personal medical use of marijuana in California pursuant to the Compassionate Use Act.
9. The Community Development Director, in conjunction with the Chief of Police and the
City Attorney, shall immediately commence to take steps to conduct a study of the potential impacts of
medica1 marijuana dispensaries and possible amendments to the City's Zoning Code related to medical
marijuana dispensaries.
756050-2
"a" -Ib -65' ¿.,').-.
Attachmcllt 1
Page 1 of3
Z6b~
WHEREAS, based on the foregoing, the City Council finds that issuing permits, business licenses
or other applicable entitlements providing for the establishment and/or operation of medical marijuana
dispensaries, prior to the completion of the City's study of the potential impact of such facilities, poses a
current and immediate threat to the public health, safety, and welfare, and that therefore a temporary
moratorium on the issuance of such permits, licenses and entitlements is necessary.
NOW THEREFORE, THE CITY COUNCIL ORDAINS AS FOLLOWS, ADOPTED AS AN
INTERIM ORDINANCE UNDER THE PROVISIONS OF GOVERNMENT CODE SECTION
65858:
A. Ioitiation of Study of Potential Impacts of Medical Marijuana Dispensary. Staff is
hereby directed to study the potential harmful secondary effects associated with medical marijuana
dispensaries and the current and immediate threat such sccondary effects posc to the public health, safety
and welfare. Staff shall also study possible amendments to the City's Zoning Code related to medical
marij uana dispcnsaries that may mitigate the potential tl1Teat to the public health, safety and wclfare.
ß. Moratorium Imposed.
I. Tn accordance with the authority granted the City of Dublin under Government Code
Section 65858, from and after the date of this ordinance, no use permit, variance, building permit, or any
other applicable entitlement for use, including but not limited to the issuance of a business license, shall
be approved or issued for the establishment or operation of a medical marijuana dispensary for a period of
45 days.
2. For purposes of this ordinance, "medical marijuana dispensary" means any facility or
location where a primary caregiver intends to make available, sell, transmit, give, or otherwise provide
medical marijuana to two or more of/he following: a qualified patient or a person with an identification
card, or a primary caregiver in strict accordance with Health and Safety Code Section 11362.5 et SGÇ;I·,
including but not limited to Health & Safety Code Section 11362.7 (d) (2) and (3). The terms "primary
caregiver", "qualified patient", and "person with an identification card" shall be as defined in Health and
Safety Code Section 11362.5 et seq,
3. For purposes of this ordinance, a "medical marijuana dispensary" shall not include the
following uses, as long as the location of such uses arc otherwise regulated by applicable law: a elinic
licensed pursuant to Chapter 1 of Division 2 of the Health & Safety Code, a health care racility licensed
pursuant to Chapter 2 of Division 2 of the Health & Safety Code, a residential care facility for persons
with chronic Jife-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health &
Safety Code, a residential care facility for the cldcrly licensed pursuant to Chapter 3.2 of Division 2 of the
Health & Safety Code, a residential hospicc, or a home health agency licensed pursuant to Chapter 8 of
the Health & Safety Code, as long as any such use complies strictly with applicablc law including, but not
limited to, Health & Salety Code Section 11362.5 et~.
C. Authority; Urgency Statement. This ordinance is an interim ordinance adopted as an urgency
measure pursuant to Govcrnment Code Section 65858 and is for the immediate preservation of the public
peace, hcalth and welfare. The facts constituting the urgency are these: California cities which have pern1Îtted
tile establishment oCmedical marijuana dispensaries have recognized that doing so has resulted in the crcation
of negative secondary effects such as an increase in crime, including burglary, robbery and the sale of illegal
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drugs, in the areas immediately surrounding medical marijuana dispensaries. The City of Dublin has received
inquiries regarding the permitting and establislnnent of medical marijuana dispensaries within the City and
several neighboring cities have or are in thc process o I' adopting moratoriums that may increase the likelihood
that a medical marijuana dispensary will seek to open in the City. The City of Dublin does not currently have
standards in the Dublin Zoning Code related to the location, operation and concentration of medical marijuana
dispensaries within the City. Absent the adoption of this urgency ordinance, the establishmcnt and operation
of medical marijuana dispcnsaries in the City would result in the hamlful secondary effects identified abovc.
As a result of the harmful secondary effects associated with medical marijuana dispensaries and the current
and immediate threat such secondary effects pose to the public health, safety and wclfarc, it is necessary to, in
accordance with Govcmment Code Section 65858, temporarily establish a 45-day moratorium on the
cstablishment and operation of ncw medical marij uana dispensaries in the City pending the completion of the
City's study ofthe potential impacts of medical marijuana dispensaries and possible amendments to the City's
Zoning Code.
E. Compliance with California Environmental Quality Act. This ordinance is not a
"project" within the meaning of Section 15378 of the State CEQA Guidelines, because it has no potential
for resulting in physical change in the environmcnt, directly or ultimately; it prevents changcs in the
environment pcnding the completion of the study. This urgency ordinance is categorically excmpt from
CEQA under section 15308 of the State CEQA Guidelines because it is a regulatory action taken by the
City, in accordance with Government Code scetion 65858, to assure maintenance and protection ofthc
environment pending completion of the study.
F. Severability. If any provision of this ordinance or the application thereof to any person or
circumstance is held invalid, the remaindcr of the ordinance, including the application of such part or
provision to othcr pcrsons or circumstances shall not be affected thereby and shall continue in full force
and effect. To this end, provisions of this ordinance are sevcrable. The City Council hereby declares that
it would have passed each section, subsection, subdivision, para~,'raph, sentence, clause, or phrase hereof
irrespective of the fact that anyone or more sections, subsections, subdivisions, paragraphs, sentences,
clauscs, or phrases be held unconstitutional, invalid, or unenforceable.
G. Effective Date. This ordinance shall become effective immediately upon adoption if
adopted by at least four-J1f[hs vote of the City Council and shall he in ellect for forty-five days from the
date of adoption unless extended by the City Council as provided for in Govemment Code section 65858.
PASSED, APPROVED and ADOPTED this _th day of
2005.
AYES:
NOES;
ABSENT:
ABSTAIN:
Mayor
City Clerk