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HomeMy WebLinkAbout1687 - ORDINANCES - 3/29/2006 ' ORDINANCE NO. 1687 AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, ESTABLISHING A TEMPORARY MORATORIUM ON THE LEGAL ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES WITHIN THE CITY OF PALM SPRINGS FOR A PERIOD OF 45 DAYS PENDING A STUDY OF ZONING REGULATIONS THAT ARE NEEDED TO ALLEVIATE A CURRENT AND ACTUAL THREAT TO THE PUBLIC HEALTH, SAFETY, AND WELFARE. (4/5THS VOTE REQUIRED.) The City Council of the City of Palm Springs, California, ordains: SECTION 1. This interim urgency ordinance is adopted pursuant to Section 312 of the Charter of the City of Palm Springs. This interim urgency ordinance is also adopted pursuant to Section 65858 of the California Government Code. SECTION 2. The City Council hereby finds, determines and declares that this interim urgency ordinance is necessary because: A. In 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"). B. The intent of Proposition 215 was to enable seriously ill Californians to legally possess, use, and cultivate marijuana for medical use under state law. C. As a result of Proposition 215, individuals have established medical marijuana dispensaries in various cities. D. The experiences of California cities in the regulation and policing of medical marijuana dispensaries have varied from city to city. Some California cities have claimed that they have experienced an increase in crime, such as burglary, robbery, loitering around the dispensaries, increased pedestrian and vehicular traffic and noise, and the sale of illegal drugs in the areas immediately surrounding such medical marijuana dispensaries. Other California cities have permitted the operation of medical marijuana dispensaries without any significant problems. The city of Oakland, which licenses and regulates medical marijuana dispensaries, has issued a report recognizing the importance of dispensaries in providing medicinal marijuana to patients and that dispensaries provide significant community benefits in a manner that produces no problems and that there are no drains on police or community resources as a result of dispensary operations. E. In October 2005, the state Board of Equalization instituted a policy that allows marijuana dispensaries to obtain a seller's permit thus enabling the state to collect sales tax on medical marijuana sales. Ordinance No. 1687 Page 2 F. One medical marijuana dispensary has previously opened in the City and the Police Department has observed an increase in adverse secondary effects in the vicinity of , the establishment, including loitering and complaints from adjoining businesses and the patrons and customers of these businesses. G. On March 20, 2006, the City's Police Department and Building Department learned that an additional medical marijuana dispensary had taken steps to open to the public and has commenced advertising its future opening on the internet and through the dissemination of leaflets and brochures. The Police Department has received reliable information that a third medical marijuana dispensary is planning on opening in the City in the near future. H. The City has not adopted appropriate rules and regulations specifically applicable to the location and operation of medical marijuana dispensaries and the lack of such controls may lead to a proliferation of such establishments and the inability to regulate such establishments in a manner that will protect the general public, homes and businesses adjacent and near such businesses, and the patients or clients of such establishments. I. Based on the lack of any consistent experience of cities statewide and the lack of any regulatory program in the City in the review of the establishment and operation of medical dispensaries, it is reasonable to conclude that negative effects on the public health, safety, and welfare may occur in Palm Springs as a result of the proliferation of ' medical marijuana dispensaries and the lack of appropriate regulations governing the establishment and operation of such facilities. J. On June 6, 2005, the United States Supreme Court decided Gonzales v. Raich, 125 S. Ct. 2195 (2005). The Court found there to be no legally recognizable medical necessity exception under Federal Law to the prohibition of possession, use, manufacture or distribution of marijuana under federal law. K. Although the medicinal use of marijuana is illegal under federal law, Section 3.5 of the California Constitution specifically states that an agency of the state does not have the power: "To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations." SECTION 3. For purposes of this ordinance, "medical marijuana dispensary" means any for profit or not-for-profit facility or location, whether permanent or temporary, where the owner(s) or operator(s) intends to or does possess and distribute marijuana for any commercial purpose. A "medical marijuana dispensary" includes a marijuana club as described in People v. Peron (1997) 59 Cal.App.4th 1383. A "medical marijuana dispensary" shall not include the following uses, as long as the location of such uses are otherwise regulated by the City's Municipal Code: a "collective" as defined in Health and ' Safety Code Section 11362.775; a clinic licensed pursuant to Chapter 1 of Division 2 of the Health & Safety Code; a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health & Safety Code; a residential care facility for persons with chronic life- Ordinance No. 1687 Page 3 threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health & Safety ' Code; a residential care facility for the elderly licensed pursuant to Chapter 3,2 of Division 2 of the Health & Safety Code; a residential hospice; or a home health agency licensed pursuant to Chapter 8 of the Health & Safety Code, as long as any such use complies strictly with applicable law including, but riot limited to, Health & Safety Code Section 11362.5 et seq. SECTION 4. A medical marijuana dispensary currently is not an expressly permitted use or a use permitted subject to a conditional use permit in any zoning district in the City of Palm Springs. However, such establishments may seek to locate in any zoning district disguised as a permitted use, or may seek to legalize this use. SECTION 5. The establishment of, or the issuance or approval of any permit, certificate of use and occupancy, or other entitlement for the legal establishment of a medical marijuana dispensary in the City may result in a threat to public health, safety and welfare in that the Palm Springs Municipal Code does not currently regulate the location and operation of medical marijuana dispensaries and does not have a regulatory program in effect that will appropriately regulate the location, establishment, and operation of medical dispensaries in the City. SECTION 6. 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, certificate of use and occupancy, or Zoning Code or General Plan amendment allowing the establishment or operation of a medical marijuana dispensary. SECTION 7. The City Council finds that this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) (Title 14, of the California Code of Regulations) because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated Municipal Code review. SECTION 8. The City Manager or his designees shall: (1) review and consider options for the regulation of medical marijuana dispensaries in the City, including, but not limited to the development of appropriate rules and regulations governing the location and operation such establishments in the City; (2) coordinate the efforts of a task force in the preparation of a draft ordinance regulating the location and operation of medical marijuana dispensaries consisting of a Council subcommittee, medical patients, advocates, law enforcement representatives, and other interested parties appointed by the City Manager; and (3) shall file a written report describing the measures which the City has taken to address the conditions which led to the adoption of this ordinance with the City Council ten (10) days prior to the expiration of this interim urgency ordinance, and any extension thereof, and such report shall be made available to the public. Ordinance No. 1687 Page 4 SECTION 9. This interim urgency ordinance shall take effect immediately upon its adoption by a four-fifths (4/5) vote of the City Council. This interim urgency ordinance shall ' continue in effect for forty-five (45) days from the date of its adoption and shall thereafter be of no further force and effect unless, after notice pursuant to California Government Code Section 65090 and a public hearing, the City Council extends this interim urgency ordinance for an additional period of time pursuant to California Government Code Section 65858. SECTION 10. During the initial forty five day period of this interim urgency ordinance, the City's code enforcement officers shall not initiate any action or proceeding against the existing medical marijuana dispensaries located at 333 N. Palm Canyon, Suite 18, Palm Springs, California and 2100 N. Palm Canyon, Suites 104 and 10513, Palm Springs, California, on the grounds that such establishments have not been expressly authorized to operate at their current locations pursuant to the City's Zoning Ordinance. This exception shall apply so long as the affected dispensaries are only open to patients and/or their primary caregivers for 8 hours during any calendar day. Except as provided herein, nothing in this ordinance shall be construed as authorizing or approving the operation of such medical marijuana dispensaries or authorizing or condoning in any way the violation of any city, state, or federal law. SECTION 11. If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this Ordinance or any part thereof is for any reason, held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction such decision shall not affect ' the validity of effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses or phrases be declared unconstitutional. ADOPTED this 29" day of March, 2006. ` r J/ V May r- ATTEST: ,,q y Clerk ' Ordinance No. 1687 Page 5 CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, California, do hereby certify that Ordinance No. 1687 is a full, true, and correct copy, and was adopted at an adjourned regular meeting of the City Council of the City of Palm Springs on March 29, 2006, by the following vote: AYES: Councilmember McCulloch, Councilmember Pougnet, Mayor Pro Tern Foat, and Mayor Oden NOES: None A13SENT: Councilmember Mills A13STAIN: None /Tames Thompson, City Clerk fCity of Palm Springs, California 1, 1