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HomeMy WebLinkAboutNS-2693 - Adopting a 45 Day Temporary Moratorium on Construction or Establishment of a Medical Marijuana Dispensaries ORDINANCE NO. NS-2693 AM EMERGENCY ORDINANCE OF THE CITY OF SANTA ANA ADOPTING A 45 DAY TEMPORARY MORATORIUM ON THE CONSTRUCTION OR ESTABLISHMENT OF A MEDICAL MARIJUANA DISPENSARIES THE CITY COUNCil OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of Santa Ana hereby finds, determines and declares as follows: A. Provisions of the General Plan of the City and Chapter 41 of the Santa Ana Municipal Code do not specifically identify medical marijuana dispensaries as land use or designate zoning districts throughout the City where medical marijuana dispensaries may be permitted. B. Because of its age, current provisions of the Santa Ana Municipal Code fail to fully take into account the potential impacts associated with the establishment of medical marijuana dispensaries and fail to address the needs of the City and its residents today and in the future. As such, provisions of the General Plan and the Santa Ana Municipal Code ("the Code") need review, study and possible revision in order to respond to recent concerns relating to the impacts of medical marijuana dispensaries and the potential establishment of new medical marijuana dispensaries in the City. C. Given these concerns, the City Council has requested that a study be undertaken of the current provisions of the General Plan and Chapter 41 if the Code to classify medical marijuana dispensaries and determine whether such businesses should be permitted in the City and if so, where, and under what conditions. D. Without adoption of this ordinance, properties in the City would quickly receive entitlements to establish medical marijuana dispensaries despite the fact that the city council has determined that the Code is in need of updating and has directed that a study be done to recommend new standards and revise the Code to address concerns created by medical marijuana dispensaries. E. It has come to the City Council's attention that at least one individual has approached city staff seeking entitlements to establish a medical marijuana dispensary. F. The City is not, at this time, able to determine if medical marijuana dispensaries can legally be established within the City for the following reasons: Ordinance No. NS - 2693 Page 1 of 5 1. In 1996, the voters of the State of California approved Proposition 215 ("the Act"), codified as Health and Safety Code Section 11362.5, et seq. 2. The intent of Proposition 215 was to enable persons who are in need of medical marijuana for medical purposes to obtain and use it under limited, specified circumstances. 3. On January 1, 2004 S8 420, codified as Health and Safety Code Section 11362.7 et seq., 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 S8 420 and the Act. 4. The Santa Ana Municipal Code does not address in any manner medical marijuana dispensaries. 5. Last month the United States Supreme Court addressed medical marijuana use in Gonzales v Raich (2005) 125 S. Ct. 2195. In Raich, the Court held that the federal government has the power to regulate and criminalize medical marijuana use and legally does so. 6. The federal Controlled Substances Act, 21 U.S.C. Section 801 et seq., classifies marijuana as a Schedule I drug because of its high potential for abuse, lack of any accepted medical use, and absence of any accepted safe use. The manufacture, distribution, or possession of a Schedule I drug is a criminal offense under the Controlled Substances Act. 7. There is a conflict between California State law, which allows marijuana manufacture and distribution in special circumstances of medical need, and federal law, which criminalizes the manufacture, distribution or possession of marijuana. 8. The United States Supreme Court addressed but may not have resolved the conflict between state and federal law in Raich. In Raich, the United States Supreme Court held that federal law prevails over state law if there is a conflict. The United States Supreme Court did not, however, expressly strike down Proposition 215. 9. Until such time as the conflict between state and federal law is conclusively resolved, the City will be unable to determine if medical marijuana dispensaries can legally be established and regulated within the city. G. If medical marijuana dispensaries are permitted in the City and left unregulated, they will pose a serious threat to the public interest, health, safety and welfare for the following reasons: Ordinance No. NS - 2693 Page 2 of 5 1. Medical marijuana dispensaries established in other cities have been associated with increases in illegal drug activity, illegal drug sales, robbery of persons leaving dispensaries, loitering around dispensaries, falsely obtaining 'identification cards' to qualify for medical marijuana and other increases in criminal activity (San Francisco Chronicle, W. Buchanan, "San Francisco Operating With No Oversight, City Officials Debate How to Rein in Growth of the Shops and Those Who Abuse Prop. 215's Intent," April 24, 2005.) 2. Medical marijuana dispensaries if allowed in the City under the current state of the City's regulations will have adverse secondary effects on surrounding properties, including but not limited to lowering property values and introducing incompatible land uses to existing neighborhoods. H. In order to prevent frustration of said studies and the implementation thereof, the public interest, health, safety and welfare require the immediate enactment of this ordinance. The absence of this ordinance would create a serious threat to the orderly and effective implementation of any code amendments, general plan amendments or specific plan amendments which may be adopted by the city as a result of the studies in that the establishment or construction of medical marijuana dispensaries may be in conflict with or frustrate the contemplated updates and revisions to the Code, general plans or specific plans. Moreover, permitting such medical marijuana dispensaries to be established or constructed during said studies and implementation would create impacts on the public health, safety and welfare that the city council, in adopting this ordinance, has found to be unacceptable. I. In response to the threat of unregulated medical marijuana dispensaries several California cities, including but not limited to the Cities of Newport Beach, Lake Forest, Huntington Beach, Long Beach, Ontario, Simi Valley, West Hollywood and San Francisco, have adopted similar moratoria to this Ordinance. J. The Request for Council Action for this ordinance dated July 18, 2005 and duly signed by the City Manager shall, by this reference, be incorporated herein, and together with this ordinance, any amendments or supplements, and oral testimony constitute the necessary findings for this ordinance. K. The city council finds, determines and declares that the current and immediate threat to the public health, safety and welfare of the city and its citizens necessitates the immediate enactment of the ordinance. The facts constituting such urgency are set forth in paragraphs A-I of this ordinance. Section 2. Prohibition No medical marijuana dispensary, whether as a primary or ancillary use, shall be established, constructed, permitted or expanded in the City of Santa Ana. Section 3. Definitions Ordinance No. NS - 2693 Page 3 of 5 For the purposes of this ordinance, the following terms shall be defined as follows: A. "Medical marijuana dispensary" shall mean any facility or location where a primary caregiver intends to, or does, cultivate, make available, sell, give or otherwise provide medical marijuana to two or more individuals who can be classified as the following: a qualified patient, a person with an identification car, or a primary caregiver. For the purposes of this ordinance, the terms "primary caregiver," "qualified patient," and "person with an identification card" shall have the same meaning as that set forth in Health and Safety Code Section 11362.5 et seq. B. "Primary use" shall mean a use that is not an ancillary use. C. "Ancillary use," shall be defined as that term is defined in section 41-13.5 of the Code. Section 4. This ordinance shall be adopted and thereafter immediately effective by two- thirds (2/3) vote of the City Council members pursuant to Section 415 of the City Charter. Section 5. This ordinance shall have no further force and effect forty-five (45) days from the date of its adoption; unless, however, after public hearing the City Council members, by two-thirds (2/3) vote, extend this ordinance for an initial period of ten (10) months and fifteen (15) days and thereafter, after public hearing, the City Council members, by two- thirds (2/3) vote, extend this ordinance one more year. Section 6. It shall be unlawful and a misdemeanor for any person to violate or fail to comply with any provision of the ordinance. The violation of any provision of this ordinance shall be punished as provided in Section 1-8 of the Code. Section 7. The Clerk of the Council shall certify to the adoption of this ordinance and cause the same to be published in the manner prescribed by law. Section 8. Ordinance No. NS - 2693 Page 4 of 5 This ordinance is introduced, passed and adopted at one and the same meeting and is thereafter immediately effective. The city council finds that this ordinance is necessary to protect the public safety, health and welfare. The reasons for the emergency are set forth in Section 1, paragraphs A-K, inclusive of this ordinance. ADOPTED this 18th day of Julv 2005. APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney /' I // , " ! /;; /\ I / By: i j/Y Benj,amln Kaufman Chi~f Assistant City Attorney AYES: Councilmembers: Alvarez. Bisl. Bustamante. Christy. Garcia, Pulido. Solorio (7) NOES: Councilmembers: None (0) ABSTAIN: Council members: None (0) NOT PRESENT: Councilmembers: None (0) CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS-2693 to be the original ordinance adopted by the City Council of the City of Santa Ana on Julv 1~~~2~~5. ~ ,. !. / '/1 P 7 Ie s -/=:rcc-2 ~K-< ~ec)~/ .c~ ;)/ '/ Clerk of the Council City of Santa Ana Date: Ordinance No. NS - 2693 Page 5 of 5