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HomeMy WebLinkAbout1095 med marijuana dispensORDINANCE NO. 1095 AN ORD/NANCE OF THE CITY COUNCtL OF THE CITY OF UK/AH ADOP'I/NG CHAPTER 8 IN DIV~SI'ON 6 OF THE UKZAH CITY CODE, ENTTTLED: "MEDICAL MARIIUANA DltSPENSARIES." The City Council of the City of Ukiah hereby ordains as follows: SEC, ~ON ONE. Chapter 8 is hereby added to Division 6 of the Ukiah City Code to read as follows: Chapter 8 Medical Marijuana Dispensaries § 5700: FTNDINGS AND PURPOSE: A. l~n enacting this Chapter, the City Council finds as follows: 1. l~n 1970, Congress enacted the Controlled Substances Act (CSA) which, among other things, makes it illegal to import, manufacture, distribute, possess or use marijuana in the United States. 2. Tn 1996, the voters of the State of California approved Proposition 215 (the "ACt" (codified as Health and Safety (H&S) Code section 11362.5 et. seq.). 3. The Act creates a limited exception from criminal liability for seriously ill persons who are in need of medical marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances. 4. On January 1, 2004, SB 420 went into effect. SB 420, known as the "Medical Marijuana Program" (codified as H&S Code sections 11362.7-11362.83) ("MMP'~ was enacted by the state Legislature to clarify the scope of the Act and to allow cities and other governing bodies to adopt and enforce rules and regulations consistent with SB 420. 5. The Act expressly anticipates the enactment of additional local legislation. It provides: "Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non-medical purposes." Health and Safety Code § 11362.5. 6. The City Council takes legislative notice, based on the materials presented to the Council during the legislative process leading to the enactment of this Chapter, of the fact that several California cities and counties which have permitted the establishment of medical marijuana dispensaries have experienced serious adverse impacts associated with and resulting from such dispensaries. According to these communities, according to news stories widely reported, and according to the California Police Chief's Association, medical marijuana dispensaries have resulted in and/or caused an increase in crime, including burglaries, robberies, violence, illegal sales of marijuana to, and use of marijuana by, minors and other persons without medical need in the areas immediately surrounding such medical marijuana dispensaries. The City of Ukiah reasonably could anticipate experiencing similar adverse impacts and effects. 7. The City Council further takes legislative notice that as of 3anuary 2006, at least 56 cities and six counties in California have adopted moratoria or interim ordinances prohibiting medical marijuana dispensaries. According to a 2006 survey of city attorneys, 40 cities have adopted permanent ordinances prohibiting medical marijuana dispensaries. 8. The Drug Enforcement Agency ("DEA'~, the federal agency charged with enforcing the CSA, has expressed its view that state medical marijuana laws like Proposition 215 and the MMP impede its ability to enforce the CSA; have "caused conflict and confusion among the law enforcement community;" are "viewed as jeopardizing the historical cooperation between federal, state, and local drug enforcement officials;" and "undercut enforcement of the Controlled Substances Act." 9. The City Council further takes legislative notice that concerns about non-medical marijuana use arising in connection with Proposition 2:L5 and the MMP also have been recognized by state and federal courts. See, e.g., People ex re/. Lungren v. Peron, 59 CaI.App.4th 1383, :[386-:1387 (1997); Gonza/es v. Raich, 125 S.Ct. 2195, 22:14 n.43 (2005). 10. The City Council further takes legislative notice that the use, possession, distribution and sale of marijuana remain illegal under the CSA; that the federal courts have recognized that despite California's Act and MIVlp, marijuana is deemed to have no accepted medical use (Gonza/es v. Ra/ch, 125 S. Ct. 2195; Un/ted States v. Oak/and Cannabis Buyers' Cooperative, 532 U.S. 483 (2001)); that medical necessity has been ruled not to be a defense to prosecution under the CSA (United States v. Oak/and Cannabis Buyers' Cooperative, 532 U.S. 483); and that the federal government properly may enforce the CSA despite the Act and IVlMp. (Gonza/es v. Raich, 125 S. Ct. 2195.) 11. The City Council further takes legislative notice that in 21 U.S.C. §901, the CSA states: 2 No provision of this title [the CSA] shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a ~osJtJve conflict between that provision of this title and that State. (Emphasis added.) Whether the HHP positively conflicts with the CSA is an issue pending in the Court of Appeal in County of San Diego et al. v. San Diego NORML et al., and may be addressed by the Attorney General in response to questions posed by State Senator Sheila .lames Kuehl. Moreover, neither the Act nor the NIMP expressly entitles any person to establish a business which sells marijuana to another person. It is not clear how a marijuana dispensary could be organized that would comply with state law as well as federal law. 12. In order to address these and other community concerns regarding the establishment of medical marijuana dispensaries and the legal uncertainty concerning the operation of such dispensaries, the City Council has determined that such dispensaries should be prohibited to prevent potential adverse secondary impacts within the City, to await further clarification regarding the legality of such facilities under state and federal law, and to see whether a facility could be proposed which would both comply with state and federal law and operate without jeopardizing the health, safety and welfare of City residents. 13. Allowing medical marijuana dispensaries and issuing permits or other entitlements providing for the establishment and/or operation of medical marijuana dispensaries, prior to the clarification of the law and to the development of a specific proposal for operating such a facility, poses a threat to the public health, safety and welfare. 14. An ordinance prohibiting medical marijuana dispensaries, and prohibiting the issuance of any permits, licenses and entitlements for medical marijuana dispensaries, is necessary and appropriate to maintain and protect the public health, safety and welfare of the citizens of Ukiah pending these further developments. B. The purpose of this Chapter is to prohibit the operation and location of medical marijuana dispensaries in the City of Ukiah, until such time as their legality is clearly established and a proposal can be developed that would satisfy the City Council that the facility could operate without causing the secondary impacts described above. §5701. DEFINi ~ iONS AND EXCEPTIONS: A. For the purposes of this chapter, "medical marijuana dispensary" means any facility or location, whether fixed or mobile, established or used for the purpose of providing, selling, making available or distributing marijuana to two or more primary caregivers, qualified patients or persons with identification cards. B. For the purposes of this chapter, the terms "primary caregiver," "qualified patient," and "person with an identification card" shall be as defined in Cai. Health and Safety Code Section 11362.7. C. For purposes of this Chapter, a "medical marijuana dispensary" shall not include the following uses, provided that the location of such uses are otherwise regulated by applicable law, and further provided any such use complies strictly with applicable law including, but not limited to, Health and Safety Code Section 11362.5 et. seq.: 1. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code. 2. A healthcare facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code. 3. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.1 of Division 2 of the Health and Safety Code. 4. A residential care facility for the elderly, licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code. 5. A residential hospice, or a home health agency, licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code. 6. A private residence where the marijuana is provided to qualified patients who reside at that location. 7. The cultivation of marijuana in compliance with Ukiah City Code Section 9254. §5702: MEDICAL MARL3UANA DISPENSARIES PROHIBZTED: A. Medical marijuana dispensaries are prohibited in the City of Ukiah, unless or until this Chapter is amended by an ordinance adopted by the City Council. No medical marijuana dispensary shall operate, locate or otherwise be permitted within the City of Ukiah until such amendments are adopted by the City Council and become effective. B. No officer or employee of the City shall issue, approve or grant any permit, license or other entitlement for the establishment or operation of a medical 4 marijuana dispensary or which would permit the operation of a medical marijuana dispensary. §5703: REMEDTES: A. Tt shall be unlawful and a violation of this ordinance for a medical marijuana dispensary to be located or operated in violation of this Chapter. Any such dispensary is hereby declared a public nuisance and the City Attorney is authorized to prosecute an appropriate action to enjoin the violation and abate the nuisance. B. It shall be unlawful and constitute a misdemeanor for any person to violate the provisions of this Chapter, punishable by a fine of not more than $1,000 or imprisonment in the county jail for a period of not more than six months or both. This penalty shall not apply, if prohibited by state law. C. The remedy provided herein is in addition to any other remedy available at law or in equity, whether civil or criminal, for any violation of this Chapter or engaging in activity requiring a City license or permit, including, without limitation, a business license or building permit, without first obtaining such permit or license. SECTION 2. SEVERABZLZTY. Tf any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases may be held unconstitutional, invalid or unenforceable. SECT/ON 3. CEQA. This ordinance is not subject to the California Environmental Quality Act ("CEQA'~ pursuant to §§ 15060 (c)(2) (the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment) and 15060 (c)(3) the activity is not a project as defined in § 15378 of the CEQA Guidelines (Title 14, Chapter 3 of the California Code of Regulations) because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment. SEC'r/ON 4. EFFEt; 1 iVE DATE AND PUBLt'CAT/ON. This Ordinance shall be in full force and effect thirty days from and after its passage. Within fifteen days after its adoption, this Ordinance shall be published once in a newspaper of general circulation in the in the City of Ukiah. Introduced by title only on May 2, 2007, by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Councilmember Thomas, Crane, McCowen, and Mayor Rodin None None None Adopted on June 20, 2007 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Councilmember Thomas, Crane, McCowen, and Mayor Rodin None None None Mari Rodin, Mayor A1-FEST: Llnda Brown; Del~Lft¥City Clerk