HomeMy WebLinkAbout1710 - ORDINANCES - 3/21/2007 ' ORDINANCE NO. 1710
AN INTERIM URGENCY ORDINANCE OF THE CITY OF
PALM SPRINGS, CALIFORNIA, EXTENDING ORDINANCE
NOS. 1687 AND 1688, A TEMPORARY MORATORIUM ON
THE LEGAL ESTABLISHMENT AND OPERATION OF
MEDICAL MARIJUANA DISPENSARIES WITHIN THE CITY
OF PALM SPRINGS FOR AN ADDITIONAL PERIOD OF
TWELVE MONTHS 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, California, ordains:
SECTION 1. This interim urgency ordinance, extending previous interim urgency
ordinances, 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.
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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.
F. Two medical marijuana dispensaries have 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. Subsequent to the City Council's adoption of the most recent interim
urgency ordinance, the two existing medical marijuana dispensaries operating in the
City closed and are no longer in operation. Notwithstanding the closure of these
facilities, the Police Department has received reliable information that one or more new
medical marijuana dispensaries may open in the City.
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
Ordinance No. 1710
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' 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, On May 3, 2006, the City Council adopted Ordinance
No. 1688 extending the temporary moratorium on medical marijuana dispensaries to
March 28, 2007,
M. During the period established by City Ordinance Nos. 1687 and 1688, 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.AppAffi 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 11362.776; 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 32 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 sec.
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,
Ordinance No. 1710
Page 4
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. '
SECTION 9. This interim urgency ordinance shall be deemed an extension of
Ordinance Nos. 1687 and 1688 and shall extend the interim urgency regulations as
provided in Sections 1 through 9 of Ordinance Nos. 1687 and 1688 and this interim
urgency ordinance for an additional twelve (12) months. This interim urgency ordinance
shall therefore continue in effect until March 28, 2008 and shall thereafter be of no
further force and effect.
SECTION 10. 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.
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Ordinance No. 1710
Page 5
' ADOPTED this 2181 day of March, 2007.
MAYOR
ATTEST:
y 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. 1710 is a full, true, and correct copy, and was adopted at a
regular meeting of the City Council of the City of Palm Springs on the 215t day of March,
2007, by the following vote:
AYES: Councilmember Foat, Councilmember McCulloch, Councilmember Mills,
Mayor Pro Tern Pougnet, and Mayor Oden.
NOES: None.
ABSENT: None.
ABSTAIN: None.
?1mes Thompson, City Clerk
Palm Springs, California