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HomeMy WebLinkAboutORD-18-08 Urgency Measure Prohibiting Operation and Establishment of Medical Marijuana DispensariesORDINANCE NO. 18-08 AN URGENCY MEASURE OF THE CITY COUNCIL OF THE CITY OF ORANGE PROHIBITING THE OPERATION AND ESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES. WHEREAS, Section 65858(a) of the California Government Code authorizes the City Council to adopt, as an urgency measure, an interim ordinance prohibiting any uses which may be in conflict with a contemplated zoning proposal which the City Council, planning commission or planning department is studying to protect the public health, safety and welfare; and WHEREAS, in 1996 California voters approved Proposition 215, commonly referred to as the Compassionate Use Act (Act), which enabled seriously ill patients to legally possess, use and cultivate marijuana for medicinal purposes under state law; and WHEREAS, in January 2004, SB 420 was enacted by the state legislature to clarify the scope of the Act and to allow local jurisdictions to adopt and enforce rules and regulations consistent with the Act; and WHEREAS, the Act does not authorize the type of retail medical marijuana dispensaries that have been opening in various California cities; and WHEREAS, notwithstanding California's efforts to provide marijuana for medicinal purposes, the Federal Controlled Substances Act classifies marijuana as a Schedule I narcotic. Under federal law the manufacture, distribution, or possession of marijuana is a criminal offense; and WHEREAS, in the United States Supreme Court decision of Gonzales v. Raich, 125 S. Ct. 2195, the Court held that there is no medical necessity exception under federal law to the prohibition against the manufacture, distribution and possession of marijuana. The Court also held that federal law prevails over state law when a conflict exists between the two; and WHEREAS, an obvious conflict exists between California law, which allows the medicinal use of marijuana under certain circumstances, and federal law, which prohibits the manufacture, distribution and possession of marijuana under any circumstances; and WHEREAS, in 2006 the City adopted Ordinance 14-06, amending Chapter 17 of the Orange Municipal Code, requiring all legally authorized land uses in the City of Orange to be consistent with federal, state and local laws; and WHEREAS, medical marijuana dispensaries are not a permitted use in the City; and WHEREAS, in violation of federal law, the Orange Municipal Code and specifically Ordinance 14-06, at least one establishment claiming to be a medical marijuana dispensary has opened in the City; and WHEREAS, this establishment has been raided by federal authorities on more than one occasion and has been a source of complaints from nearby residents and created various enforcement issues, draining valuable local and federal resources, while it remained in operation; and WHEREAS, the aforementioned establishment has sued the City, seeking to remain open pursuant to state law and alleging, among other things, that Ordinance 14-06 was not clear in prohibiting businesses such as medical marijuana dispensaries; and WHEREAS, notwithstanding federal law, medical marijuana dispensaries have been established in other California cities; and WHEREAS, 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, based on our 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 Orange due to the establishment and/or operation of inedical marijuana dispensaries; and WHEREAS, other neighboring cities such as Buena Park, Fullerton, Garden Grove, Huntington Beach, Mission Viejo, Placentia, Santa Ana and Tustin have adopted moratoriums or complete bans on medical marijuana dispensaries increasing the likelihood that without a moratorium those dispensaries may seek to locate in Orange; and WHEREAS, the California Attorney General has issued guidelines under which the Attorney General believes a person could operate a medical marijuana cooperative and not be in violation of California law, although such an operation would still violate federal law; and WHEREAS, the City Council determines, by a four-fifths vote, that this urgency ordinance is a matter of City-wide importance and necessary for the immediate preservation and protection of the public health, safety or welfare of the community. 2 NOW THEREFORE, the City Council of the City of Orange hereby ordains as follows: SECTION I: For the period of this ordinance, or any extension thereof, a medical marijuana dispensary shall be considered a prohibited use in any zoning district of the City, even if located within an otherwise permitted use, and neither the City Council nor City Staff shall approve any use interpretation, permit, license, certificate of occupancy, zoning code or general plan amendment allowing the operation and/or establishment of a medical marijuana dispensary. SECTION II: For purposes of this ordinance the following terms and phrases shall be interpreted and construed as defined in this section: Medical marijuana dispensary" is any facility, use or location where medical marijuana is made available to and/or distributed by or to two or more individuals who fall into one or more of the following categories: a qualified patient, a person with an identification card, or a primary caregiver. Each of these terms is defined herein and shall be interpreted in strict accordance with California Health and Safety Code Sections 11362.5 and 11362.7 et seq. as such sections may be amended from time to time. Qualified patient" is a person who is entitled to the protections of the California Health and Safety Code Section 11362.5, but who does not have an identification card issued by the State Department of Health Services. Identification card" is a document issued by the State Department of Health Services and/or County of Orange Health Care Agency which identifies the bearer as a person authorized to engage in the medical use of marijuana and the bearer's designated primary caregiver, if any. Primary caregiver" is an individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health or safety of that patient or person. SECTION III: Based on the facts recited above, the City Council finds that the operation and/or establishment of inedical marijuana dispensaries under current zoning laws are a threat to the public health, safety and welfare. This interim ordinance is introduced, passed and adopted at one meeting and shall become effective immediately in accordance with Section 65858 of the California Government Code. 3 SECTION IV: The establishment and/or operation of a medical marijuana dispensary, as defined herein, shall constitute a violation of this ordinance and shall be punished as provided for in Sections 1.08.010 and 1.08.020 of the Orange Municipal Code. SECTION V: 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 VI: A summary of this ordinance shall be published once within fifteen (15) days after this interim ordinance is passed, 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 interim ordinance along with the names of those City Council members voting far and against the interim ordinance in accordance with Government Code 36933. This interim ordinance is effective immediately, but shall be of no further force and effect 45 days from the date of its adoption unless it is subsequently extended in accordance with the provisions of Section 65858(a) of the California Government Code. ADOPTED this 12th day of November 2008. aroly . ave e, Mayor, City Orange ATTEST: Mary E urp y, City Clerk Cit of Orange 4 STATE OF CALIFORNIA ) 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 12t" day of November 2008, and was duly passed and adopted the same day, by the following vote, to wit: AYES: COUNCILMEMBERS: Smith, Murphy, Cavecche, Bilodeau NOES: COLJNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Dumitru ABSTAIN: COLJNCILMEMBERS: None Mary E. City Cle , i range 5