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HomeMy WebLinkAbout75C - EMERGENCY ORD.-MARIJUANA DISPENSARY '/ REQUEST FOR COUNCIL ACTION ~~~\ ~~. ~d"calton I s('~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: AUGUST 15, 2005 TITLE: PUBLIC HEARING - EMERGENCY ORDINANCE REGULATING MEDICAL MARIJUANA DISPENSARY USES APPROVED o As Recommended o As Amended o Ordinance on 1 sl Reading o Ordinance on 2nd Reading o Implementing Resolution o Set Public Hearing For Ah ~ . CITY MANAGER CONTINUED TO FILE NUMBER - RECOMMENDED ACTION Adopt an emergency ordinance extending the prohibition on the medical marijuana dispensary uses in the City of Santa Ana. DISCUSSION On July 18, 2005, the City Council adopted an emergency ordinance establishing a moratorium on medical marijuana dispensary uses in the City of Santa Ana. The City's General Plan and zoning code do not specifically address this type of use, and at this time, it is not feasible to determine whether a medical marijuana dispensary can be legally established within the City. Currently, a conflict exists between California State law and federal law. State law allows marijuana manufacture, distribution and possession to serve specific medical needs, yet federal law strictly prohibits the manufacture, distribution, or possession of marijuana due to its high potential for abuse. Further, the United States Supreme Court recently held that the federal government has the power to regulate and prohibit intrastate medical marijuana use under the Controlled Substances Act, 21 USC Section 801 et seq. If medical marijuana dispensaries are unregulated and permitted in the City, they will pose a serious threat to the public interest, health, safety and welfare. The interim ordinance prohibits the establishment of any medical marijuana dispensary for a 45-day time period, which expires on September 1, 2005. Research has been completed to review ordinances adopted by other California cities pertaining to dispensary facilities, and meetings have been held to discuss the potential legal ramifications. Due to the conflicts existing between California State and federal laws, and the absence of clear legal guidel ines, it is recommended that the City Council extend the emergency interim ordinance that prohibits medical marijuana dispensary uses in the City of Santa Ana for the remainder of one year until further study of this issue can be completed. 75C-1 Emergency Ordinance Regulating Medical Marijuana Dispensary Uses August 15, 2005 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. Agency HS: H8,medical-Marijuanaordinance\extend-Moratorium_medical_marijuanacc 75C-2 ORDINANCE NO. NS-2694 AM EMERGENCY ORDINANCE OF THE CITY OF SANTA ANA EXTENDING THE TEMPORARY MORATORIUM ON THE CONSTRUCTION OR ESTABLISHMENT OF 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. For this reason, on July 18, 2005, at a regularly scheduled public meeting the City Council adopted Ordinance No. NS-2693, which established a moratorium on the construction or establishment of a medical marijuana dispensary (hereafter "the moratorium ordinance"). By its own terms the moratorium ordinance expires 45 days following its adoption C. 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. D. Given these concerns, the City Council has requested, in adopting the moratorium ordinance, 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. E. Without adoption of an extension to the moratorium 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. Ordinance No. NS - 2694 Page 1 of 5 75C-3 F. 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. G. 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: 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 SB 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 SB 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 Ordinance NS-2694 Page 2 of 5 75C-4 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. H. 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: 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. I. 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. J. 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, Simj Valley, West Hollywood and San Francisco, have adopted similar moratoria to this Ordinance. Ordinance No, NS - 2694 Page 3 of 5 75C-5 K. The Request for Council Action for this ordinance dated August 15, 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. This Request for Council Action specifically describes and reports to the Council the measures staff has taken to alleviate the conditions which led to the adoption of the initial moratorium ordinance. L. The City Council has held a duly noticed public hearing prior to its consideration of this emergency ordinance providing for an extension of the moratorium ordinance and has considered all of the written and oral testimony offered concerning whether to adopt this emergency ordinance. M. 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-L of this ordinance. N. The City Council further finds that this ordinance constitutes a matter of Citywide importance and is not directed towards nor targeted at any particular parcel of property or proposed occupant. Section 2. Extension of Moratorium Ordinance. A. The City Council hereby extends Ordinance No. NS -2693 for the period specified in this Section 2. 8, Pursuant to section 415 of the city's charter, this interim ordinance is introduced, passed and adopted at the same meeting and shall take effect immediately. It shall be effective for a period of 10 months and 15 days from the date of its adoption, and thereafter shall be null and void unless extended by further action of the City Council. Section 3. It shall be unlawful and a misdemeanor for any person to violate or fail to comply with any provision of this ordinance or Ordinance No. NS-2693. The violation of any provision of this ordinance shall be punished as provided in Section 1-8 of the Code. Section 4. 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 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-N, inclusive of this ordinance. Ordinance NS-2694 Page 4 of 5 75C-6 ADOPTED this day of ,2005. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Council members NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS-2694 to be the original ordinance adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Ordinance No, NS - 2694 Page 5 of 5 75C-7 75C-8