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HomeMy WebLinkAboutORD 07-10 Prohibiting Selling Cultivating Distributing MarijuanaORDINANCE NO. 7 -10 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ORANGE PROHIBITING THE BUSINESS OF SELLING, CULTIVATING OR DISTRIBUTING MARIJUANA. WHEREAS, in 1996 California voters approved Proposition 215, the Compassionate Use Act ( "CUA "), which provides that a patient or the patient's primary caregiver who possesses or cultivates marijuana for the personal medical purpose of the patient upon an oral or written recommendation from a physician may assert these facts as an affirmative defense to prosecution under California's marijuana laws; and WHEREAS, except as provided above, possession, distribution, cultivation and transportation of marijuana is still a violation of state law and can be prosecuted as such; and WHEREAS, in January 2004, the state legislature enacted the Medical Marijuana Program (MMP) to clarify the scope of the CUA and to "facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest ... and provide needed guidance to law enforcement officers "; and WHEREAS, under the MMP, a qualified patient is one who suffers from a "serious medical condition" which is defined in general as a person who has a condition which substantially limits the ability of the person to conduct one or more major life activities; and WHEREAS, under the MMP, a primary caregiver is one who has consistently assumed responsibility for the housing, health, or safety of the patient; and WHEREAS, notwithstanding the CUA and MMP, the Federal Controlled Substances Act classifies marijuana as a Schedule I narcotic and under federal law the manufacture, distribution, or possession of marijuana is a criminal offense and physicians are still prohibited from prescribing marijuana because the federal Food and Drug Administration regulates prescription drugs; and WHEREAS, in Gonzales v. Raich, 125 S. Ct. 2195, the United States Supreme Court held that there is no medical necessity exception under federal law to the prohibition against the manufacture, distribution and possession of marijuana and that with respect to controlled substance, that federal law prevails over state law, meaning all possession of marijuana remains a crime under federal law; and WHEREAS, Government Code Section 37100 prohibits a city from adopting any laws which conflict with state or federal law; and WHEREAS, city laws which "legalize" the possession, distribution and use of marijuana even for medicinal purposes could potentially be in conflict with federal law; and WHEREAS, medical marijuana dispensaries have proliferated in cities such as Los Angeles and Lake Forest and cities that have medical marijuana dispensaries have reported an increase in crime, such as burglary, armed robbery, loitering, illegal drug sales, increased pedestrian and vehicular traffic and increased noise in the areas immediately surrounding medical marijuana dispensaries; and WHEREAS, in reaction to medical marijuana dispensaries opening in the City, the City Council adopted a moratorium on all such uses, which moratorium is still currently in effect; and WHEREAS, the MMP provides that qualified patients or their primary caregivers who form collectives for the purpose of cultivating marijuana for medical purposes shall not solely on the basis of that fact, be subject to state criminal sanctions; and WHEREAS, a collective is defined as "a business, farm, etc., jointly owned and operated by the members of a group" (Random House Unabridged Dictionary; Random House, Inc. 2006); and WHEREAS, while some medical marijuana dispensaries in the state claim to operate as a collective, the City has had no experience of a medical marijuana dispensary operating in such a fashion; and WHEREAS, the CUA and the MMP provide defenses criminal prosecution for qualified patients and their primary caregivers to grow, possess and use marijuana for personal medical uses, while medical marijuana dispensaries, in large part, are little more than retail outlets for the free exchange of money for marijuana and thus, violate both state and federal law; and WHEREAS, medical marijuana dispensaries have been frequent targets for robbers seeking to steal both the marijuana and cash on site, there have been numerous reported instances of persons purchasing marijuana from a medical marijuana dispensary and then selling it on the street and there are no regulations or tracking mechanism which would hinder an individual from making multiple purchases at multiple medical marijuana dispensaries; and WHEREAS, based on the City's experience and the experience of other cities it is reasonable to conclude that similar negative effects on public health, safety and welfare will occur in the City due to the establishment and/or operation of medical marijuana dispensaries and that the vast majority of such dispensaries are not being operated in accordance with state law; and WHEREAS, state courts have consistently found that via the police power granted to cities by article 11, section 7 of the California Constitution, that cities may enact zoning regulations that prohibit specified businesses from locating in the city, including prohibitions on medical marijuana dispensaries; and 2 WHEREAS, the MMP provides that nothing in the MMP shall prevent a city from adopting and enforcing laws consistent with the MMP. NOW THEREFORE, the City Council of the City of Orange hereby ordains as follows: SECTION I A new chapter, Chapter 5.89 shall be added to the Orange Municipal Code to provide as follows: Chapter 5.89 Medical Marijuana Businesses 5.89.010 Definitions. A. The term "primary caregiver" when used in this Section shall mean the individual, designated by a patient, who has consistently assumed responsibility for the housing, health and/or safety of that patient. B. The term "qualified patient' when used in this Section shall be a person who is exempt from the application of Health and Safety Code § §11357 and 11358 in accordance with Health and Safety Code § 11362.5. C. The term "medical marijuana dispensary" is any facility or location at which marijuana is grown, made available to, sold, given away and/or distributed by or to more than four persons. D. The term "marijuana transport business" when used in this Section shall be any person or entity that transports or offers to transport marijuana in any vehicle or by any other means. A person who is transporting marijuana to a qualified patient for whom he or she is the primary caregiver shall not be a "marijuana transport business ". 5.89.020 Prohibitions. No person shall own, operate, or manage a medical marijuana dispensary or marijuana transport business. No person shall lease or offer to lease any facility or any location as a medical marijuana dispensary or for a marijuana transport business. No person shall employ any persons or be employed at a medical marijuana dispensary or in a marijuana transport business. 5.90.030 Public Nuisance. Any violation of-this Chapter Shall constitute a public nuisance and may be abated as provided in Chapter 1.08 of this Code and/or under state law. 3 5.90.040 Penalty. Any person who violates this section shall be guilty of a misdemeanor and fined up to 1,000 and /or be imprisoned in Orange County Jail for a period of up to six months." SECTION II: Section 17.02.020 of the Orange Municipal Code shall be amended to strike the second and third reference to the word "title" in that section and replace with the word Code ". SECTION III: The City Council finds that this Ordinance is not a project and is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Title 14, California Code of Regulations, Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it has no potential for resulting in physical change to the environment. SECTION IV If any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional. SECTION V A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the Office of the City Clerk at least five (5) days prior to the City Council meeting at which this Ordinance is to be adopted. A summary of this Ordinance shall also be published once within fifteen (15) days after this Ordinance's passage in a newspaper of general circulation, published, and circulated in the City of Orange. The City Clerk shall post in the Office of the City Clerk a certified copy of the full text of such adopted Ordinance along with the names of those City Council members voting for and against the Ordinance in accordance with Government Code Section 36933. This Ordinance shall take effect thirty (30) days from and after the date of its final passage. ADOPTED this 10 day of August, 2010. e yn )' . aycche, Mayor, City of Orange 0 ATTEST: Mary E. COUNTY OF ORANGE CITY OF ORANGE I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the 27 day of July, 2010, and thereafter at the regular meeting of said City Council duly on the 10 day of August, 2010, was duly passed and adopted by the following vote, to wit: AYES:COUNCILMEMBERS:Smith, Murphy, Cavecche, Dumitru, Bilodeau NOES:COUNCILMEMBERS:None ABSENT:COUNCILMEMBERS:None ABSTAIN:COUNCILMEMBERS:None Mary u , City Clerk, Ci of Orange 5