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O2411City Council Meeting 10 -23 -12 Santa Monica, California ORDINANCE NUMBER 2411 (CCS) (City Council Series) AN URGENCY INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA EXTENDING ORDINANCE NUMBER 2408 (CCS), THE INITIAL INTERIM 45 -DAY ORDINANCE IMPOSING A MORATORIUM ON THE ESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES, WITH SPECIFIED EXCEPTIONS THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Findings and Purpose. The Council finds and declares: (a) On November 5, 1996, the voters of the State of California approved Proposition 215, codified as Health and Safety Code Section 11362.5 et seq, and entitled "The Compassionate Use Act of 1996" ( "CUA") (b) The intent of Proposition 215 was to enable persons who are in need of medical marijuana for specified, medical purposes to obtain and use it under limited, specified circumstances. (c) The California Legislature adopted Senate Bill 420, effective January 1, 2004, adding Article 2.5, "Medical Marijuana Program," to Division 10 of the California Health and Safety Code §11362.7 et seq. ( "Medical Marijuana Program Act" or "MMPA "). The MMPA created a state - approved medical marijuana identification card program and provided certain additional immunities from state marijuana laws. (d) Health and Safety Code §11362.83 authorizes cities to adopt and enforce rules and regulations consistent with the MMPA. (e) The CUA and the MMPA leave numerous fundamental questions unanswered as to how these provisions should be implemented, particularly in regard to the distribution of medical marijuana through facilities commonly referred to as medical marijuana dispensaries. (f) On August 25, 2008, then California Attorney General Edmund G. Brown issued "Guidelines for the Security and Non - Diversion of Marijuana Grown for Medical Use" ( "Guidelines "). These Guidelines were intended to clarify the state's laws governing medical marijuana and provide clear guidance for patients and law enforcement to ensure that medical marijuana is not diverted to illicit markets. However, as reflected by the acknowledgement of the current Attorney General, Kamala Harris, these guidelines have proven to be inadequate and require revision to prevent continued abuses. (g) More specifically, on December 21, 2011, the Attorney General sent letters to the State Assembly and localities indicating that she was troubled by the exploitation of the State's medical marijuana provisions by gangs, criminal enterprises and others and that State law needed to be amended to address significant unsettled questions of law and policy in the areas of cultivation and distribution of medical marijuana including defining the contours of the right to collectively and cooperatively cultivate medical marijuana, regulating dispensaries, and establishing standards for edible medical 2 marijuana products. The Attorney General had initially merely proposed clarifying the prior Guidelines, but subsequently determined that guideline revision would not adequately address the myriad of the issues with the existing regulatory scheme, a complexity which is made all the more difficult due to directly contrary federal law and the present federal enforcement actions, as described below. (h) Marijuana is listed as a Schedule 1 drug under the Federal Controlled Substances Act ( "CSA" ). (i) As a Schedule 1 drug, the CSA provides that the manufacture, cultivation, distribution, and dispensing of marijuana is illegal for any purpose, and establishes criminal penalties for marijuana use. Q) The United. States Supreme Court in United States v. Oakland Cannabis Buyers' Cooperative et al., 532 U.S. 483 (2001) held that a medical necessity defense against prosecution was unavailable to defendants because of marijuana's Schedule I states and in Gonzalez v. Raich, 545 U.S. 1 (2005) held that the provisions of the federal Controlled Act apply to the personal medical use of marijuana in California. (k) The United States Ninth Circuit Court of Appeals held in Raich v. Gonzalez, 500 F.3d 850 (9th Cir. 2007) that the Controlled Substances Act applied to an individual's medical use of marijuana and upheld the provisions of the Controlled Substance Act criminalizing the manufacture, distribution, or possession of marijuana to growers and users of marijuana for medical purposes. (I) In February 2009, the U.S. Attorney General stated that federal law enforcement officials would ease enforcement at medical marijuana collective or 3 cooperative distribution facilities operating in accordance with California law; however, on or about October 7, 2011, federal prosecutors announced an aggressive crackdown on California pot dispensaries and stated that the Department of Justice maintains the authority to pursue criminal or civil actions for any CSA violations whenever the Department determines such actions are warranted. The four regional U.S. Attorneys for California began a coordinated prosecution effort against marijuana dispensaries. Among these actions included sending letters to property owners throughout the State which operated or authorized medical dispensaries. These letters informed the property owners that continued marijuana sales and /or distribution from the property would subject the owners to criminal prosecution, imprisonment, fines, and asset forfeiture. (m) Actions and statements by these federal prosecutors have also challenged the authority of cities and counties to enact land use controls regulating the dispensing of medical marijuana. They have raised concern about the potential criminal and civil liability of local government employees, boards, commissions, and agents involved in the permitting of dispensaries since permit issuance would authorize conduct in violation of federal law and the federal government's efforts to regulate controlled substances. These statements and actions have led some California cities which had authorized medical marijuana dispensaries to subsequently adopt moratoriums on further approvals. (n) In addition to the above - mentioned federal litigation, the CUA has been subject to numerous appellate decisions; and the City Council has considered decisions of the California courts regarding regarding medical marijuana, including but not limited to: (1) People v. Mentch, 45 CalAth 274 (2008) ( "primary caregiver" status requires a specified showing of consistently providing care, independent of any assistance in taking medical marijuana, at or before the time of assuming the responsibility of assisting with medical marijuana). (2) People ex rel. Lungren v. Peron, 59 Cal.AppAth 1383 (1997) (filling out a form that designates a commercial enterprise as the qualified patient's "primary caregiver" is insufficient to establish a caregiver status). (3) Claremont v. Kruse, 177 Cal.AppAth 1153 (2009) (neither the CUA nor the MMPA expressly or impliedly preempt local exercise of land use and zoning police powers and cities' authority to adopt moratorium on medical marijuana dispensaries). (4) City of Corona v. Naulls, 166 Cal. App. 4th 618 (2008) (medical marijuana dispensary which was operating as a non - permitted, non - conforming use constituted a nuisance per se which the city could abate by seeking injunctive relief in this Court. "). (5) People v. Mower, 28 CalAth 457 (2002) (defenses accorded by the CUA are limited to "patients and primary caregivers" for the possession and cultivation of marijuana only). (6) People v. Urziceanu, 132 Cal.AppAth 747 (2005) (the CUA did not create a constitutional right to obtain marijuana). (7) People v. Hochanadel, 176 Cal.AppAth 997 (2009) (operators of a storefront dispensary which sold marijuana to individuals did not operate within the CUA and the 5 MMPA, and did not constitute a primary caregiver such that it was entitled to protections of the CUA and MMPA). (8) County of San Diego v. NORML, 165 Cal.AppAth 798 (2008) (provisions of the Program requiring California counties to issue identification cards to qualified medical marijuana patients are not preempted by the Federal Controlled Substances Act). (9) City of Garden Grove v. Superior Court, 157 Cal.AppAth 355 (2007) (return of marijuana to a qualified user is not preempted by the Federal Controlled Substances Act). (10) Ross v. RagingWire Telecommunications, Inc., 42 CalAth 920 (2008) (holding that "No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users "). (o) However, notwithstanding the substantial body of established appellate case law, the interpretation of central provisions of the CUA remains uncertain as reflected by the California Supreme Court's grant of review petitions in the following medical marijuana cases: (1) City of Riverside v. Inland Empire Patient's Health & Wellness Center, Inc., 133 Cal.Rptr.3d 363 (2011) (previously published at: 200 Cal.AppAth 885) (finding that the City's ban on medical marijuana dispensaries is not preempted by state law and affirming that dispensaries are nuisances per se under local law). 0 (2) People v. G3 Holistic, 2011 WL 5416335 (Cal. Ct. App. Nov. 9, 2011) (concluding that the City of Upland's prohibition of medical marijuana dispensaries through enacting zoning and business licensing ordinances banning MMDs is a lawful method of limiting the use of property by regulating and restricting the location and establishment of MMDs in the city). (3) City of Lake Forest v. Evergreen Holistic Collective, 138 Cal.Rptr.3d 332 (2012) (previously published at: 203 Cal.AppAth 1413) (holding that local agencies may not ban medical marijuana dispensaries or define dispensaries as nuisances per se). (4) County of Los Angeles v. Alternative Medicinal Cannabis Collective, 143 Cal.Rptr.3d 716 (2012) (previously published at 207 Cal.App.4th 601) (holding that Los Angeles County's complete ban on dispensaries is preempted by the MMPA). (5) 420 Caregivers LLC v. City of Los Angeles, 143 Cal.Rptr.3d 754 (2012) (previously published at 207 Cal.App.4th 703) (upholding Los Angeles City's dispensary regulations and rejecting preemption, equal protection, due process and privacy challenges to such regulations). (p) The lack of consistency between the California Court of Appeal decisions and state and federal laws and regulations concerning the distribution of medical cannabis could well result in a city violating the CSA and /or the CUA if it authorized dispensaries and similar operations under local law. Until the Supreme Court issues opinions on the medical marijuana cases presently pending before it, the California Legislature clarifies the CUA, or the federal government adopts a new enforcement policy for the CSA, it is extremely difficult for the City to understand the scope of its regulatory authority. 7 (q) The City adopted a new Land Use and Circulation Element of the General Plan of the City of Santa Monica ( "LUCE ") on July 6, 2010 and is presently in the process of preparing a comprehensive revision to the City's Zoning Ordinance reflecting the LUCE's policies, goals and standards. It is contemplated that this process will extend well into 2013. (r) The City's current Zoning Ordinance does not list as permitted uses medical marijuana collectives, cooperatives or dispensaries and does not contain regulations on their establishment, location or operation. (In general, uses not specified as permitted in the City's Zoning Ordinance are not allowed.) (s) During the past three months, the City has received four over - the - counter inquiries and eleven telephone inquiries relating to establishing medical marijuana businesses in the City. (t) Quite apart from the significant legal uncertainties described above, in order to address both community and statewide concerns regarding establishing medical marijuana dispensaries, it is necessary for the City to study the potential impact such facilities may have on the public health, safety, and welfare, (u) Other California cities that have permitted the establishment of medical marijuana dispensaries have experienced an increase in crime, such as burglary, robbery, and assaults; the distribution of tainted marijuana; the sale of illegal drugs in the areas immediately surrounding such medical marijuana dispensaries, collectives and cooperatives; the unavoidable exposure of school -age children and other sensitive residents to medical marijuana; fraud in issuing, obtaining, or using medical marijuana n. recommendations; and the diversion of marijuana for non - medical and recreational uses. (v) In April 2009, the California Police Chief's Association issued a "White Paper" which explains that throughout California, many violent crimes have been committed that can be traced back to the proliferation of marijuana dispensaries, including armed robberies and murders. Increased noise and pedestrian traffic, including nonresidents in pursuit of marijuana and out of area criminals in search of prey, are commonly encountered just outside marijuana dispensaries. (w) As reflected by the experience of other California cities and such studies as the White Paper, there would be a threat to the public health, safety and welfare of the City if medical marijuana dispensaries locate in the City without proper regulations in place. Absent the adoption of this interim urgency ordinance, it is likely that the establishment and operation of medical marijuana establishments in locations within the City, without appropriate controls in place to regulate the impacts on the community would result in harmful effects to the businesses, property owners, and residents of the City, would conflict with the provisions of the City's LUCE. (x) The uncertain state of California law, the lack of local regulatory oversight, statements by federal prosecutors that challenge local authority to regulate medical marijuana dispensaries, and the adverse secondary effects experienced by other cities presently make the establishment of medical marijuana dispensary facilities a current and immediate threat to the preservation of the public health, safety, or welfare. (y) Government Code Section 65858 allows a city, without following the procedures otherwise required prior to the adoption of a zoning ordinance, to protect NO public safety, health and welfare through adoption as an urgency measures of an interim ordinance prohibiting any uses which may be in conflict with a contemplated general plan, specific plan or a zoning proposal that the City Council, Planning Commission or Planning Department is considering or studying or plans to consider or study within a reasonable time. (z) The City has a compelling interest in protecting the public health, safety, and welfare of its residents and businesses, in preserving the peace and integrity of its neighborhoods, and in providing clear local regulation. (aa) For the reasons described above, a temporary moratorium is required to allow the City an opportunity to (1) address the community concerns regarding the establishment and operation of medical marijuana dispensaries, (2) study the potential impacts that medical marijuana dispensaries may have on the public health, safety and welfare, (3) review the legal authority that is available for the City to enact land use controls intended to regulate the distribution of medical marijuana in a manner consistent with the requirements of both State and federal law, (4) study and determine what local regulations may be appropriate or necessary for medical marijuana dispensaries, and (5) ensure that regulations authorizing medical marijuana dispensaries can be implemented in such a way as not to result in harmful effects to the businesses, property owners, and residents of the City. (bb) Based on the evidence presented to the City Council at the October 2, 2012 City Council meeting, the October 2, 2012 staff report therein, and the foregoing findings, the City Council declared and concluded that an initial urgency ordinance was urgently needed for the immediate preservation of the public health, safety, or welfare 10 and to avoid a current, immediate and direct threat to the health, safety, or welfare of the community. (cc) Consequently, on that date, the City Council adopted Ordinance Number 2408 (CCS), a 45 -day moratorium on the approval of any land use entitlements, business licenses, or any other license or permit for medical marijuana dispensaries, with specified exceptions. (dd) The facts and conditions giving rise to the adoption of Ordinance Number 2408 (CCS) continue to exist at the present time. Consequently, in accordance with the requirements of Government Code Section 65858, a ten (10) month, fifteen (15) day extension of the moratorium is needed to continue to provide the City an adequate opportunity to (1) address the community concerns regarding the establishment and operation of medical marijuana dispensaries, (2) study the potential impacts that medical marijuana dispensaries may have on the public health, safety and welfare, (3) review the legal authority that is available for the City to enact land use controls intended to regulate the distribution of medical marijuana in a manner consistent with the requirements of both State and federal law, (4) study and determine what local regulations may be appropriate or necessary for medical marijuana dispensaries, and (5) ensure that regulations authorizing medical marijuana dispensaries can be implemented in such a way as not to result in harmful effects to the businesses, property owners, and residents of the City. (ee) Based on the uncertain state of California law, the lack of local regulatory oversight, statements by federal prosecutors that challenge local authority to regulate medical marijuana dispensaries, and the adverse secondary effects presently 11 experienced by other cities, as detailed above, and in the October 2, 2012 and October 23, 2012 staff reports, the establishment of medical marijuana dispensary facilities in the City continue to constitute a current and immediate threat to the preservation of the public health, safety or welfare; extension of the initial urgency interim ordinance is necessary due to this continued current and immediate threat to the public health, safety, or welfare; and the findings above taken together constitute the City Council's statement of the reasons constituting such necessity and urgency. SECTION 2. Moratorium Imposed. A. Scope. In accordance with the authority granted the City under Article XI, Section 7 of the California Constitution and California Government Code Section 65858, from and after the effective date of this ordinance, no permit or other applicable license or entitlement for use, including, but not limited to, the issuance of a business license, building permit, conditional use permit, or other land use approval, shall be approved or issued for the establishment or operation of a medical marijuana dispensary in the City. Medical marijuana dispensaries are hereby expressly prohibited in all areas and zoning districts of the City. No person, group, corporation, partnership, or association shall establish or operate or maintain, or allow to establish or maintain or operate, a medical marijuana dispensary within the City. B. Definitions. 12 1. For purposes of this ordinance, "medical marijuana dispensary" or "dispensary" means any facility, building, structure or fixed location where one or more qualified patients and /or persons with identification cards and /or primary caregivers cultivate, distribute, sell, dispense, transmit, process, exchange, give away, or otherwise make available marijuana for medical purposes. The terms "primary caregiver," "qualified patient," and "person with an identification care" shall be as defined in California Health and Safety Code Section 11362.5 et seq.; 2. For purposes of this ordinance, a "medical marijuana dispensary" shall not include the following uses, as long as the location of such uses are otherwise regulated by applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code, a residential care facility for persons with chronic life- threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the California Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of the California Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, California Health and Safety Code Section 11362.5 et seq. 3. For purposes of this ordinance, a "medical marijuana dispensary" shall also not include any dwelling unit where qualified patients or persons with an identification card permanently reside and collectively or cooperatively cultivate marijuana on -site for their own personal medical use and does not include the provision, cultivation, or 13 distribution of medical marijuana at this dwelling unit by primary caregivers for the personal medical use of the qualified patients or persons with an identification card who have designated the individual(s) as a primary caregiver, in accordance with California Health and Safety Code Sections 11362.5 and 11362.7 et seq. SECTION 3. Enforcement. (a) Any violation of any provision of this ordinance is unlawful and a public nuisance. (b) Any person, group, corporation or association violating this ordinance shall be guilty of an infraction, which shall be punishable by a fine not exceeding two hundred fifty dollars, or a misdemeanor, which shall be punishable by a fine not exceeding one thousand dollars, or by imprisonment in the County Jail for a period not exceeding six months or by both such fine and imprisonment. (c) Any person violating this Section may be issued an administrative citation pursuant to Chapter 1.09 of this Code. The base fine amount shall be $1,000. (d) A separate offense occurs for each day any violation of this ordinance is continued and /or maintained. (e) The remedies specified in this Ordinance are cumulative and their specification shall not preclude the use of any other remedy provided by law. Enforcement shall be undertaken consistent with Santa Monica Municipal Code Chapter 3.72. SECTION 4. In accordance with California Government Code Section 65858, subdivision (c), which provides that interim ordinances that have the effect of denying 14 approvals needed for the development of projects with a significant component of multifamily housing (as defined in California Government Code Section 65858, subdivisions (g) and (h)) may not be extended except upon written findings adopted by the legislative body as specified in subdivision (c), the City Council hereby finds that the moratorium established pursuant to this ordinance will not have the effect of denying approvals needed for the development of projects with a significant component of multi- family housing; and that, therefore, the findings specified in Section 65858, subdivision (c) need not be made. SECTION 5. Government Code Section 65858(d) states that "ten days prior to the expiration of an interim ordinance or any extension, the legislative body [the City Council] shall issue a written report describing the measures taken to alleviate the conditions which led to the adoption of the ordinance. Pursuant to this provision, the City Council hereby reports that the factors which gave rise to the Ordinance Number 2408 (CCS) still apply -- the uncertain state of California law, the lack of local regulatory oversight, statements by federal prosecutors that challenge local authority to regulate medical marijuana dispensaries and the adverse secondary effects experienced by other cities. Indeed, since conflicts between California and Federal marijuana laws have still not been resolved and the California Supreme Court has not ruled on the cases detailed in the interim ordinance that are presently pending review and no decision is expected soon, the City must still await future developments in the law since these developments will certainly affect the scope of the City's regulatory authority. The City has undertaken a number of actions since the adoption of Ordinance Number 2408 (CCS) including collecting ordinances from a several California cities that have iN? regulated medical marijuana dispensaries, obtaining studies on secondary impacts associated with medical marijuana dispensaries, staying abreast of legal developments, and discussing issues of regulating dispensaries with a leading representative of a marijuana policy reform organization. Staff also anticipates holding an initial community meeting on this topic on January 24, 2013. Given the need to review and research the various legal and legislative options available and existing staff work load,. an earlier meeting date was determined inappropriate. However, in order to have adequate time to fashion and propose appropriate regulations of medical marijuana dispensaries, and to ensure that the current and immediate threat to the public safety, health and welfare continues to be forestalled, adoption of this ordinance is necessary. SECTION 6. CEQA Determination. Pursuant to Section 15001 of the California Environmental Quality Act ( "CEQA ") Guidelines, this interim ordinance is exempt from CEQA based on the following: (a) This ordinance is not a project within the meaning of CEQA Section 15378 because it has no potential for resulting in physical change to the environment, either directly or indirectly. (b) This ordinance is categorically exempt under CEQA Section 15308 as a regulatory action taken by the City pursuant to its police power and in accordance with Government Code Section 65858 to assure maintenance and protection of the environment pending the evaluation and adoption of potential local legislation, regulation, and policies. (c) This ordinance is also exempt pursuant to CEQA Section 15061(b)(3) since the proposed ordinance involves a proactive measure to prohibit temporarily prohibit 16 cannabis dispensaries and does not have the potential to significantly impact the environment. SECTION 7. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 8. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, 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 and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 9. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective immediately upon adoption if passed and adopted by at least four -fifths vote of the City Council and shall be in effect until the date that is ten months and fifteen days following the last day that Ordinance Number 2408 (CCS) is in effect unless, prior to its expiration, following a public hearing noticed pursuant to Government Code Section 65090 and four -fifths vote of its members, the City Council extends the ordinance in accordance with California Government Code Section 65858. Ordinance Number 17 2408's prohibition of uses and other terms and provisions set forth in Sections 2 and 3 of Ordinance Number 2408 (CCS) shall be extended to the date that is ten months and fifteen days following the last day that Ordinance Number 2408 (CCS) is in effect. APPROVED AS TO FORM: MARSHA JONES MOOT t- IE City Attorney IN Approved and adopted this 23rd day of October, 2012. Richard Bloom, Mayor State of California ) County of Los Angeles) ss. City of Santa Monica ) I, Sarah Gorman, City Clerk of the City of Santa Monica, do hereby certify that the foregoing Ordinance No. 2411 (CCS) had its introduction and adoption at the Santa Monica City Council meeting held on October 23, 2012, by the following vote: Council members: Holbrook, McKeown, O'Connor, Shriver Mayor Pro Tern Davis, Mayor Bloom Council members: None Council member: O'Day ATTEST: Sarah Gorman, City Clerk A summary of Ordinance No. 2411 (CCS) was duly published pursuant to California Government Code Section 40806.