HomeMy WebLinkAboutNS-2728 - Extending Temporary Moratorium on the Construction or Establishment of Medical Marijuana Dispensaries
ORDINANCE NS-272B
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 1 B, 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 possible revision in order to
respond to recent concerns relating to the impacts of medical marijuana
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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
113627 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.
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.
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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 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
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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 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.
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CERTIFiCATE OF ATTESTATION AND ORIGINALITY
i, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS-2728 to be the original ordinance adopted by the City
Council of the City of Santa Ana on October 16, 2006, and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date: ./ /9 ~ /9 -or:::
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Patricia E. Healy
Clerk of Council
City of Santa Ana
(
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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 16th day of October, 2006
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By: ,/
BenJamin Kaufm'
Chillf Assistant . ity Attorney
I'
1/
AYES Councilmembers Alvarez. Bisl. Bustamante. Christy. Pulido.
Solorio (6)
NOES: Councilmembers None (0)
ABSTAIN: Councilmembers None (0)
NOT PRESENT: Councilmembers Garcia (1)
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