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.