HomeMy WebLinkAbout75D - EMERGENCY ORD - MEDICAL MARIJUANA
CITY COUNCIL MEETING DATE:
REQU EST FOR
COUNCIL ACTION
CLERK OF COUNCIL USE ONLY:
OCTOBER 16, 2006
TITLE:
PUBLIC HEARING - EMERGENCY
ORDINANCE REGULATING MEDICAL
MARIJUANA DISPENSARY USES
APPROVED
o As Recommended
o As Amended
o Ordinance on 1" Reading
o Ordinance on 2" Reading
o Implementing Resolution
o Set Public Hearing For
;. aAa
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 for a period of one
year.
DISCUSSION
On August 15, 2005, the City Council adopted an emergency ordinance that
prohibited medical marijuana uses in the City of Santa Ana for a period
of one year. Although the City has not recently received inquiries about
establishing a medical marijuana dispensary, the City's General plan and
zoning code do not specifically address this type of use. It is not
feasible to determine whether a medical marijuana dispensary can be
legally established within the City since 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 has 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.
Staff has conducted surveys of various cities to review ordinances and
policies that have been adopted by those cities. Some cities, such as
Cypress, Costa Mesa, and Huntington Beach have adopted ordinances that
prohibit medical marijuana uses. Other cities, such as Newport Beach,
Buena Park, and Irvine, have opted to wait for clear legal guidelines
prior to the adoption of such an ordinance, As of October 6, 2005, there
were at least 56 California localities with moratoriums and 13 with
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Emergency Ordinance Regulating
Medical Marijuana Dispensary Uses
October 16, 2006
Page 2
permanent bans. Additionally, there have been lawsuits filed against the
cities of Concord, Pasadena and Susanville, as well as Riverside County,
in response to their permanent ban ordinances.
The legal ramifications of medical marijuana dispensaries are still under
review, and no clear legal guidelines have been established on this
topic. Due to the conflicts existing between California State and
federal laws, and the absence of clear legal guidelines, it is
recommended that the City Council adopt a one-year emergency interim
ordinance to enact a moratorium that prohibits medical marijuana
dispensary uses in the City of Santa Ana to allow the City to review the
outcome of pending legal actions.
FISCAL IMPACT
There is no fiscal impact associated with this action.
~ Trevino
~~c~~ive D~rector
Planning & Building Agency
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Hs:medical-Marijuanaordinance\one-yrMoratorium~medical_marijuanacc
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ORDINANCE
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 expired 45 days following its adoption.
C. Thereafter, on August 15, 2006, at a regularly scheduled public meeting the
City Council, after holding a noticed public hearing, adopted Ordinance
No. NS-2694, which extended the moratorium ordinance.
D. Since the initial adoption of the moratorium ordinance, staff of the City has
conducted surveys of various cities to review ordinances and policies that
have been adopted by those cities. Staff research has disclosed that some
cities, such as Cypress, Costa Mesa, and Huntington Beach have adopted
ordinances that prohibit medical marijuana uses. Other cities, such as
Newport Beach, Buena Park, and Irvine, have opted to wait for clear legal
guidelines prior to the adoption of such an ordinance. As of October 6, 2005,
there were at least 56 California localities with moratoriums and 13 with
permanent bans. Additionally, there have been lawsuits filed against the
cities of Concord, Pasadena and Susanville, as well as Riverside County, in
response to their permanent ban ordinances.
E. 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
Ordinance No. NS - XXX)(
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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.
F. 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.
G. 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.
H. 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.
I. 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. Recently, 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.
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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.
J. 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.
K. 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
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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.
L. The Request for Council Action for this ordinance dated October 16, 2006,
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.
M. 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.
N. 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-N of this ordinance.
O. 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. 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
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
Ordinance No. NS - XXX)(
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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. 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 one (1) year from the date
of its adoption, and thereafter shall be null and void.
Section 5. It shall be unlawful and a misdemeanor for any person to
violate or fail to comply with any provision of this ordinance or any provision of
Ordinance Nos. NS-2693 or NS-2694. The violation of any provision of this
ordinance or any provision of Ordinance Nos. NS-2693 or NS-2694 shall be
punished as provided in Section 1-8 of the Code.
Section 6. 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 7. 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-O,
inclusive of this ordinance.
ADOPTED this
day of
,2006.
Miguel A. Pulido
Mayor
Ordinance No. NS - XXXX
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APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Council members
ABSTAIN: Councilmembers
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-XXX 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 - XXXX
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