HomeMy WebLinkAbout1688 - ORDINANCES - 5/3/2006 ORDINANCE NO. 1688
AN INTERIM URGENCY ORDINANCE OF THE CITY OF
PALM SPRINGS, CALIFORNIA, EXTENDING ORDINANCE
NO. 1687, A TEMPORARY MORATORIUM ON THE LEGAL
ESTABLISHMENT AND OPERATION OF MEDICAL
MARIJUANA DISPENSARIES WITHIN THE CITY OF PALM
SPRINGS FOR AN ADDITIONAL PERIOD OF 10 MONTHS
AND 15 DAYS PENDING COMPLETION OF A STUDY OF
ZONING REGULATIONS THAT ARE NEEDED TO
ALLEVIATE A CURRENT AND ACTUAL THREAT TO THE
PUBLIC HEALTH, SAFETY, AND WELFARE.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY ORDAIN AS
FOLLOWS:
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. 1688
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."
L. On March 29, 2006, the City Council adopted Ordinance No. 1687, an initial
interim urgency ordinance, and found that medical marijuana dispensaries are not
permitted uses in any zoning district in the City and expressly prohibited establishment of
any medical marijuana dispensary in the City for 45 days pending commencement of
appropriate studies and consideration of alternative land uses approaches for addressing
the health, safety, and welfare issues associated with the regulation of medical marijuana
dispensaries in the City, subject to express conditional exceptions as provided in
Ordinance No. 1687.
Ordinance No. 1688
Page 3
M. During the initial interim period established by City Ordinance No. 1687, the
City Council and its Planning Staff have commenced studies and reviews described in the
report filed with the City Council and the City Manager has formed a City Manager
committee as directed by the City Council.
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-
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 not 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
Ordinance No. 1688
Page 4
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.
SECTION 9. This interim urgency ordinance shall be deemed an extension of
Ordinance No. 1687 and shall extend the interim urgency regulations as provided in
Ordinance No. 1687 and this interim urgency ordinance for an additional ten (10) months
and fifteen (15) days and shall therefore continue in effect until March 28, 2007 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 period this interim urgency ordinance remains in effect, 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 105B, 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.
Ordinance No. 1688
Page 5
ADOPTED this 3rd day of May, 2006.
'1
•'.._PO.FI fi L L•
MAYOR
ATTEST:
1tY Clerk
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. 1688 is a full, true, and correct copy, and was adopted at a regular
mieeting of the City Council of the City of Palm Springs on May 3, 2006, by the following
vote:
AYES: Councilmember McCulloch, Councilmember Mills, Councilmember Pougnet,
Mayor Pro Tern Foat and Mayor Oden
NOES: None
ABSENT: None
ABSTAIN: None
J'tnes Thompson, City Clerk
City of Palm Springs, California